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Carnegie  Endowment  for  International  Peace 

DIVISION  OF  INTERNATIONAL  LAW 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

AND 

OFFICIAL  COMMENTARY  THEREON 

OF  THE 

Second  Pan  American  Scientific  Congress 

Held  in  Washington 

December  27,  1915 -January  8,  1916 


EDITED,  WITH  INTRODUCTORY  MATTER 
BY 

JAMES  BROWN  SCOTT 

DIRECTOR 


New  York 

OXFORD  UNIVERSITY  PRESS 

American  Branch:    35  West  32nd  Street 

London,  Toronto,  Melbourne  and  Bombay 

HUMPHREY  MILFORD 

1916 


a/^'^ 

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COPYRIGHT  1916 

BY  THE 

CARNEGIE  ENDOWMENT  FOR  INTERNATIONAL  PEACE 


r  WASHINGTON,  D.  C. 


Byron  S.  Adams,  Printer 
washington,  d.  c. 


PREFATORY  NOTE 

The  present  little  volume  contains  recommendations  of  the  Second 
Pan  American  Scientific  Congress  relating  to  international  law,  as  they 
appear  in  the  Final  Act  of  the  Congress,  and  they  are  accompanied  by 
that  part  of  the  official  report,  prepared  by  the  undersigned,  explain- 
ing, interpreting,  and  justifying  them,  if  perchance  they  need  justifica- 
tion. The  last  three  resolutions  can  not  in  strictness  be  said  to  relate 
to  international  law,  and  yet,  as  they  are  law  and  deal  with  legal  mat- 
ters, they  have  been  retained. 

The  introduction  to  this  portion  of  the  official  report  states  that  the 
articles  are  based  upon  the  resolutions  adopted  by  the  Conference  of 
American  Teachers  of  International  Law,  held  at  Washington,  April 
23-25,  1914,  upon  the  invitation  of  the  American  Society  of  Interna- 
tional Law,  and  it  has  been  thought  well  to  include  these  resolutions 
in  the  little  volume  in  order  that  the  relation  between  them  may  be 
noted.  The  Conference  of  Teachers  directed  that  Mr.  Root's  article 
on  the  need  of  popular  understanding  of  international  law,  contributed 
to  the  first  number  of  the  American  Journal  of  International  Law, 
which  appeared  in  1907,  and  his  address  on  opening  the  Conference  as 
its  president,  should  be  published  with  the  resolutions.  They  are  there- 
fore prefixed  to  them  and,  together  with  the  resolutions  of  the  Con- 
ference, form  the  introduction  to  the  recommendations  of  the  Pan 
American  Scientific  Congress. 

The  preface  to  the  proceedings  of  the  Conference  of  American 
Teachers  of  International  Law  states  the  aims  and  purposes  of  its 
promoters  to  be 

To  consider  what  measures,  if  any,  could  properly  be  taken 
to  arouse  a  greater  interest  in  international  law  where  taught  in 
American  institutions  of  learning;  to  secure  its  introduction  in 
American  institutions  of  learning  where  it  is  not  taught;  to  call 
attention  to  its  importance  to  lawyers  in  the  practice  of  their  pro- 
fession ;  and  to  suggest  the  advisability  of  a  loiowledge  of  its  prin- 
ciples for  admission  to  the  bar ;  and  to  show,  finally,  the  necessity 
of  an  understanding  of  the  subject  by  the  public  at  large,  which 
in  a  democracy  such  as  ours  determines  in  the  ultimate  resort  the 
foreign  policy  of  the  United  States. 

It  was  felt  that  none  were  more  competent  than  the  teachers  of 
international  law  to  consider  these  various  questions  and  to  reach 
wise  conclusions  upon  them,  and  that  any  suggestions  concerning 

3326G7 


U  PREFATORY   NOTE 

the  teaching  of  international  law  in  American  institutions  of  learn- 
ing should  properly  come  from  the  teachers  themselves  rather  than 
from  those  not  engaged  in  the  teaching  of  international  law.  It 
was  believed — and  the  proceedings  of  the  conference  show  that 
the  belief  was  justified — that  a  conference  of  teachers  of  our  lead- 
ing colleges  and  universities,  in  which  these  subjects  could  be 
carefully  discussed  and  considered,  would  result  in  fruitful  recom- 
mendations, and  that  the  teaching  profession  generally  would  be 
able  in  conference  to  agree  upon  recommendations  acceptable  to 
the  teachers,  because  the  recommendations  in  question  were  for- 
mulated by  the  teachers  themselves,  and  acceptable  to  the  public, 
because  of  the  confidence  which  the  public  must  necessarily  have 
in  the  results  reached  by  experts. 

The  statements  contained  in  the  above  extracts  are  believed  to  apply 
to  the  American  republics  generally  as  well  as  to  the  particular  one 
of  them  in  which  the  conference  was  held,  and  it  was  thought  advis- 
able to  include  in  Section  VI  of  the  program  of  the  Pan  American 
Scientific  Congress,  devoted  to  international  law,  public  law,  and  juris- 
prudence, topics  which  necessarily  involve  a  consideration  of  increased 
efficiency  in  the  teaching  of  international  law  and  the  means  whereby 
its  principles  could  be  popularized  in  each  of  the  American  countries. 
The  following  are  the  most  important  of  these  topics : 

The  study  of  international  law  in  American  countries  and  the 
means  by  which  it  may  be  made  more  effective. 

How  can  the  people  of  the  American  countries  best  be  impressed 
with  the  duties  and  responsibilities  of  the  state  in  international 
law? 

Are  there  specific  American  problems  of  international  law? 

The  proceedings  of  the  Conference  of  American  Teachers  of  Inter- 
national Law  were  translated  into  Spanish  and  laid  before  the  members 
of  the  section,  with  the  result  that  these  resolutions,  of  a  general  nature 
and  applicable  to  the  American  republics  as  a  whole,  were  adopted  by 
the  Congress  with  the  recommendation  that  they  be  carried  into  effect. 
These  recommendations  will  not,  it  is  believed,  fall  upon  deaf  ears,  be- 
cause the  American  Society  of  International  Law  approved  in  their 
entirety  the  resolutions  of  the  Conference  of  Teachers,  agreed  to  comply 
with  some  of  them,  and  recommended  others  to  the  Division  of  Inter- 
national Law  of  the  Carnegie  Endowment,  in  the  hope  that  means 


PREFATORY   NOTE  111 

would  be  found  to  render  the  resolutions  effective.  The  action  taken 
by  the  American  Society  of  International  Law  and  by  the  Executive 
Committee  of  the  Carnegie  Endowment  to  give  effect  to  the  resolutions 
are  thus  stated  by  the  Director  of  the  Division  of  International  Law  in 
the  report  of  his  Division  for  1915 : 

The  Society  called  a  special  meeting  of  its  Executive  Committee 
to  consider  and  take  action  upon  the  recommendations,  and  the 
Committee  met  on  November  7,  1914.  The  recommendations 
were  divided  by  the  Executive  Committee  of  the  Society  into  four 
classes:  First,  those  which  the  Society  was  able  and  willing  to 
carry  out  upon  its  own  account.  This  class  included  Resolutions 
Nos.  2-c,  8,  9  and  11.  Secondly,  those  which  required  detailed 
consideration  before  action  could  be  taken  upon  them.  They  in- 
cluded Resolutions  Nos.  3,  4,  6,  7,  10,  12,  13,  14  and  15.  Thirdly, 
those  which  the  Executive  Committee  of  the  Society  did  not  regard 
as  coming  within  its  sphere  as  a  purely  scientific  and  professional 
organization.  This  referred  especially  to  Resolution  No.  2-d. 
Lastly,  those  which  the  Society  approved,  but  which  it  was  not  able, 
on  account  of  the  expense  and  labor  involved,  to  undertake  with 
the  limited  means  at  its  disposal.  These  included  Resolutions  Nos. 
2-a,  2-b,  2-e  and  5. 

In  compliance  with  the  suggestion  contained  in  Resolution  No. 
1  of  the  Conference,  the  Executive  Committee  of  the  Society  ap- 
pointed the  following  members  as  a  Standing  Committee  on  the 
Study  and  Teaching  of  International  Law  and  Related  Subjects: 

Chairman,  Professor  George  G.  Wilson  of  Harvard  University 
Professor  Philip  Brown  of  Princeton  University 
Professor  Amos  S.  Hershey  of  Indiana  University 
Professor  Charles  Cheney  Hyde  of  Northwestern  University 
Professor  Harry  Pratt  Judson  of  the  University  of  Chicago 
Honorable  Robert  Lansing,  Counselor  for  the  Department  of 

State 
Professor  Jesse  S.  Reeves  of  the  University  of  Michigan 
Mr.  Alpheus  H.  Snow  of  Washington,  D.  C. 
Secretary  ex  officio,  Mr.  James  Brown  Scott,  recording  secretary 

of  the  Society 

To  this  Committee  were  referred  for  detailed  consideration  the 
resolutions  and  recommendations  mentioned  in  the  second  class 
above  referred  to.  As  to  the  recommendations  contained  in  the 
first  class,  which  the  Society  was  able  and  willing  to  carry  out 
on  its  own  account,  the  following  action  was  taken:  Resolution 
No.  2-c  to  be  carried  out  by  printing  the  documents  referred  to 
as  far  as  possible  in  the  Supplement  to  the  American  Journal  of 
International  Law.    Resolution  No.  8  was  directed  to  be  carried 


IV  PREFATORY   NOTE 

out  by  the  recording  secretary  of  the  Society,  and  he  has  since 
carried  out  the  direction  by  transmitting  the  opinion  of  the  Con- 
ference expressed  in  the  resolution  referred  to  every  teacher  of 
political  science,  law,  history,  political  economy  and  sociology  in 
the  United  States,  accompanied  by  the  remarks  of  the  Honorable 
Elihu  Root  on  opening  the  Conference  and  a  reprint  of  his  article 
entitled,  'The  need  of  popular  understanding  of  international 
law,"  which  appeared  in  volume  1  of  the  American  Journal  of  In- 
ternational Law.  As  to  Resolution  No.  9,  the  recording  secre- 
tary of  the  Society  was  further  directed  to  transmit  a  copy  of  the 
said  resolution  to  all  law  schools  of  the  United  States,  and  he  has 
since  carried  out  the  direction.  The  recording  secretary  was 
further  directed  to  transmit  to  the  American  Bar  Association  the 
request  of  the  Conference  that  that  Association  take  appropriate 
action  toward  including  international  law  among  the  subjects 
taught  in  law  schools  and  required  for  admission  to  the  bar.  This 
direction  has  also  been  complied  with. 

The  foregoing  action  of  the  executive  committee  of  the  Society 
was  reported  by  the  Director  to  the  Executive  Committee  of 
the  Endowment  at  its  meeting  on  January  9,  1915,  and  the  Com- 
mittee, after  carefully  considering  the  resolutions  of  the  Confer- 
ence and  the  recommendations  of  the  Society  thereon,  took  the 
following  action: 

As  to  the  recommendations  which  the  Society  approved,  but 
which  it  did  not  feel  able,  on  account  of  the  expense  and  labor  in- 
volved, to  undertake  itself,  the  Committee  directed  that  these 
projects  be  included  in  the  work  of  the  Division  of  International 
Law  of  the  Endowment  and  authorized  the  Director  to  report  to 
the  Committee  from  time  to  time  any  sums  which  might  be  neces- 
sary to  carry  out  the  said  projects,  which  include  the  publication 
of  a  bibliography  of  international  law,  an  index-digest  of  inter- 
national law,  and  a  law  reporter  of  international  cases,  referred 
to  in  Resolution  2,  sections  a,  b,  and  e.  The  time  which  has 
elapsed  since  this  action  of  the  Executive  Committee  has  been 
so  limited  that  it  has  not  been  practicable  to  work  out  the  details 
of  these  projects,  and  it  is  therefore  impracticable  to  submit  esti- 
mates for  carrying  them  out.  If  the  sums  included  in  the  esti- 
mates are  appropriated  by  the  Board,  however,  the  Division  will 
have  sufficient  funds  at  its  disposal  at  least  to  start  these  projects 
during  the  next  fiscal  year  should  such  action  meet  with  the  ap- 
proval of  the  Executive  Committee.  The  Director's  report  for 
last  year  (Year  Book,  1913-14,  p.  167)  contained  a  paragraph  de- 
voted to  the  proposition  of  the  publication  of  a  bibliography  of 
international  law,  showing  its  great  usefulness  and  the  care  with 
which  it  must  be  prepared.  The  proposition  of  establishing  an  in- 
ternational reporter  containing  decisions  of  national  courts  in- 
volving principles  of  international  law  was  also  dealt  with  in  the 


PREFATORY   NOTE  V 

same  report  (Year  Book,  1913-14,  pp.  136-138)  and  the  necessity 
pointed  out  of  devoting  very  great  consideration  to  the  details  of 
the  project.  The  action  of  the  Conference  of  Teachers  in  making 
an  independent  recommendation  on  these  two  subjects  is  very 
gratifying,  as  confirming  the  Director's  previous  recommenda- 
tions, and  it  is  hoped  that  it  will  be  possible  in  the  next  report  to 
show  considerable  progress  in  the  realization  of  the  projects. 

As  to  Resolution  No.  5,  which  the  Society  also  approved,  but 
which  it  was  unable  to  carry  out,  namely,  the  recommenda- 
tion for  the  establishment  of  fellowships  at  the  Academy  of  In- 
ternational Law  at  The  Hague,  the  Committee  requested  the 
Director  of  the  Division  of  International  Law  to  present  at  an 
opportune  time  a  practicable  plan  for  the  realization  of  the  project, 
and  this  will  be  done  when  conditions  in  Europe  permit  the  open- 
ing and  operation  of  the  Academy. 

The  recommendation  of  the  Conference  included  in  paragraph 
d  of  Resolution  No.  2,  for  the  publication  from  time  to  time  of 
reliable  information  upon  international  questions,  which  the  So- 
ciety thought  did  not  properly  come  within  its  sphere  as  a  purely 
scientific  and  professional  organization,  the  Committee  directed 
be  referred  to  the  American  Association  for  International  Concilia- 
tion, which  is  more  immediately  engaged  in  the  work  of  propa- 
ganda, to  be  carried  out  by  that  Association  so  far  as  may  be 
practicable. 

The  Committee  further  approved  the  recommendations  con- 
tained in  Resolutions  Nos.  3,  4,  6,  7,  10,  12,  13,  14  and  15,  which 
have  been  referred  to  the  Standing  Committee  of  the  Society  on 
the  Study  and  Teaching  of  International  Law  and  Related  Sub- 
jects for  detailed  consideration,  and  expressed  its  willingness 
to  cooperate  in  carrying  them  into  effect. 

The  Executive  Committee  at  the  same  time  expressed  on  behalf 
of  the  Trustees,  its  cordial  appreciation  of  and  sincere  thanks  for 
the  cooperation  of  the  Society  in  this  matter,  and,  further,  approved 
as  a  whole  the  work  of  the  Conference  of  Teachers  and  the  full 
set  of  resolutions  and  recommendations  adopted  by  it. 

The  Standing  Committee  on  the  Study  and  Teaching  of  Interna- 
tional Law  and  Related  Subjects,  of  which  Dr.  George  G.  Wilson, 
professor  of  international  law  at  Harvard  University,  is  chairman,  has 
during  the  past  year  carefully  considered  the  steps  to  be  taken  to  carry 
into  effect  the  resolutions  of  the  Conference  of  Teachers  and  will  re- 
port its  recommendations  to  the  tenth  annual  meeting  of  the  Ameri- 
can Society  of  International  Law,  to  be  held  in  Washington  in  April, 
1916;  and  it  is  both  hoped  and  expected  that  a  serious  beginning 
will  be  made  during  the  course  of  the  present  year  to  carry  into  effect 


VI  PREFATORY   NOTE 

the  resolutions  of  the  Teachers'  Conference.  It  is  also  believed  that 
the  recommendations  of  the  Standing  Committee  will  be  of  value  to 
American  countries  other  than  the  United  States,  inasmuch  as  the 
recommendations  of  the  Congress  are  for  the  most  part  identical  in 
substance,  if  slightly  differing  in  form,  with  the  resolutions  of  the 
Conference  of  Teachers;  and,  just  as  the  American  Society  of  Inter- 
national Law,  under  whose  auspices  the  Conference  of  Teachers  of 
International  Law  was  held,  stands  ready  to  cooperate  with  the  Car- 
negie Endowment  in  such  measures  as  may  seem  calculated  to  render 
these  resolutions  effective,  so  the  American  Institute  of  International 
Law,  composed  of  five  publicists  of  each  of  the  twenty-one  American 
republics  and  the  national  societies  of  international  law  founded  and 
already  existing  in  the  twenty  republics  to  the  south  of  us,  stands 
ready  to  cooperate  and  to  carry  into  effect  the  resolutions  of  the  Con- 
ference of  Teachers  and  the  recommendations  of  the  Congress  as  far 
as  it  may  be  possible  in  their  respective  countries. 

The  need  of  a  knowledge  of  international  law  and  its  application  in 
the  affairs  of  nations  was  never  greater  than  now,  and  the  language 
of  a  recent  report  presented  to  the  American  Institute  of  Interna- 
tional Law,  although  addressed  by  the  new  to  the  old  Institute,  appeals 
with  even  greater  force,  to  the  Old  World.    Thus  it  is  said: 

When,  at  a  tragic  moment  in  the  history  of  the  world,  the 
Institut  de  Droit  International,  largely  composed  of  those  who  are 
at  present  belligerents,  is  silent,  it  is  for  our  Institute,  composed  of 
neutrals,  in  the  name  of  neutrals,  to  make  the  voice  of  the  Law 
heard,  not  with  that  prestige  perhaps  which  will  come  to  it  later 
with  age  and  experience,  but  with  all  the  authority  that  springs 
from  the  impartial  inspiration  of  science  and  of  the  universal 
juridical  conscience. 

The  present  volume  will  be  issued  in  Spanish,  Portuguese,  and 
French,  as  well  as  English,  and  will  be  widely  circulated  in  the  Ameri- 
can republics  where  these  different  languages  are  spoken,  so  that  the  rec- 
ommendations relating  to  international  law  contained  in  the  Final  Act 
of  the  Second  Pan  American  Scientific  Congress  will  be  brought  within 
the  reach  of  all  who  may  care  to  read  them  and  who,  having  read, 
may,  m  the  interest  of  our  common  humanity,  be  minded  to  put  them 
into  effect. 

James  Brown  Scott, 
Director  of  the  Division  of  International  Law. 
Washington,  D.  C, 
February  28,  ipi6. 


CONTENTS 

Page 

Prefatory  Note i 

The  Need  of  Popular  Understanding  of  International  Law,  by 

Elihu  Root 1 

Opening  Address  of  the  Honorable  Elihu  Root  at  the  Conference 

of  Teachers  of  International  Law  and  Related  Subjects 4 

Resolutions  and  Recommendations  of  the  Conference  of  Teachers 

of  International  Law  and  Related  Subjects 7 

Recommendations  on  International  Law  adopted  by  the  Second 

Pan  American  Scientific  Congress 17 

Official  Commentary  on  the  Recommendations  on  International 

Law  of  the  Second  Pan  American  Scientific  Congress 22 


THE  NEED  OF  POPULAR  UNDERSTANDING  OF 
INTERNATIONAL  LAW^ 

BY 

Elihu  Root 

The  increase  of  popular  control  over  national  conduct,  which  marks 
the  political  development  of  our  time,  makes  it  constantly  more  im- 
portant that  the  great  body  of  the  people  in  each  country  should  have 
a  just  conception  of  their  international  rights  and  duties. 

Governments  do  not  make  war  nowadays  unless  assured  of  general 
and  hearty  support  among  their  people;  and  it  sometimes  happens 
that  governments  are  driven  into  war  against  their  will  by  the  pressure 
of  strong  popular  feeling.  It  is  not  uncommon  to  see  two  governments 
striving  in  the  most  conciliatory  and  patient  way  to  settle  some  matter 
of  difference  peaceably,  while  a  large  part  of  the  people  in  both  coun- 
tries maintain  an  uncompromising  and  belligerent  attitude,  insisting 
upon  the  extreme  and  uttermost  view  of  their  own  rights  in  a  way 
which,  if  it  were  to  control  national  action,  would  render  peaceable 
settlement  impossible. 

One  of  the  chief  obstacles  to  the  peaceable  adjustment  of  inter- 
national controversies  is  the  fact  that  the  negotiator  or  arbitrator  who 
yields  any  part  of  the  extreme  claims  of  his  own  country  and  concedes 
the  reasonableness  of  any  argument  of  the  other  side  is  quite  likely 
to  be  violently  condemned  by  great  numbers  of  his  own  countrymen 
who  have  never  taken  the  pains  to  make  themselves  familiar  with  the 
merits  of  the  controversy  or  have  considered  only  the  arguments  on 
their  own  side.  Sixty-four  years  have  passed  since  the  northeastern 
boundary  between  the  United  States  and  Canada  was  settled  by  the 
Webster-Ashburton  treaty  of  1842;  yet  to  this  day  there  are  many 
people  on  our  side  of  the  line  who  condemn  Mr.  Webster  for  sacrificing 
our  rights,  and  many  j>eople  on  the  Canadian  side  of  the  line  who 
blame  Lord  Ashburton  for  sacrificing  their  rights,  in  that  treaty.  Both 
sets  of  objectors  can  not  be  right;  it  seems  a  fair  inference  that  neither 
of  them  is  right;  yet  both  Mr.  Webster  and  Lord  Ashburton  had  to 
endure  reproach  and  obloquy  as  the  price  of  agreeing  upon  a  settle- 


iReorinted  from  the  American  Journal  of  International  Law,  vol.  1.   1907, 
p.  1. 


']^'l 


L  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

ment  which  has  been  worth  to  the  peace  and  prosperity  of  each  country 
a  thousand  times  as  much  as  the  value  of  all  the  territory  that  was 
in  dispute. 

In  the  great  business  of  settling  international  controversies  without 
war,  whether  it  be  by  negotiation  or  arbitration,  essential  conditions 
are  reasonableness  and  good  temper,  a  willingness  to  recognize  facts 
and  to  weigh  arguments  which  make  against  one's  own  country  as 
well  as  those  which  make  for  one's  own  country;  and  it  is  very  im- 
portant that  in  every  country  the  people  whom  negotiators  represent 
and  to  whom  arbitrators  must  return,  shall  be  able  to  consider  the 
controversy  and  judge  the  action  of  their  representatives  in  this  in- 
structed and  reasonable  way. 

One  means  to  bring  about  this  desirable  condition  is  to  increase  the 
general  public  knowledge  of  international  rights  and  duties  and  to  pro- 
mote a  popular  habit  of  reading  and  thinking  about  international 
affairs.  The  more  clearly  the  people  of  a  country  understand  their 
own  international  rights  the  less  likely  they  are  to  take  extreme  and 
extravagant  views  of  their  rights  and  the  less  likely  they  are  to  be 
ready  to  fight  for  something  to  which  they  are  not  really  entitled.  The 
more  clearly  and  universally  the  people  of  a  country  realize  the  inter- 
national obligations  and  duties  of  their  country,  the  less  likely  they  will 
be  to  resent  the  just  demands  of  other  countries  that  those  obligations 
and  duties  be  observed.  The  more  familiar  the  people  of  a  country  are 
with  the  rules  and  customs  of  self-restraint  and  courtesy  between 
nations  which  long  experience  has  shown  to  be  indispensable  for  pre- 
serving the  peace  of  the  world,  the  greater  will  be  the  tendency  to  re- 
frain from  publicly  discussing  controversies  with  other  countries  in 
such  a  way  as  to  hinder  peaceful  settlement  by  wounding  sensibilities 
or  arousing  anger  and  prejudice  on  the  other  side. 

In  every  civil  community  it  is  necessary  to  have  courts  to  determine 
rights  and  officers  to  compel  observance  of  the  law ;  yet  the  true  basis 
of  the  peace  and  order  in  which  we  live  is  not  fear  of  the  policeman ; 
it  is  the  self-restraint  of  the  thousands  of  people  who  make  up  the 
community  and  their  willingness  to  obey  the  law  and  regard  the  rights 
of  others.  The  true  basis  of  business  is  not  the  sheriff  with  a  writ  of 
execution;  it  is  the  voluntary  observance  of  the  rules  and  obligations 
of  business  life  which  are  universally  recognized  as  essential  to  business 
success.  Just  so  while  it  is  highly  important  to  have  controversies 
between  nations  settled  by  arbitration  rather  than  by  war,  and  the- 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW  3 

growth  of  sentiment  in  favor  of  that  peaceable  method  of  settlement 
is  one  of  the  great  advances  in  civilization  to  the  credit  of  this  genera- 
tion; yet  the  true  basis  of  peace  among  men  is  to  be  found  in  a  just 
and  considerate  spirit  among  the  people  who  rule  our  modem  democra- 
cies, in  their  regard  for  the  rights  of  other  countries,  and  in  their 
desire  to  be  fair  and  kindly  in  the  treatment  of  the  subjects  which  give 
rise  to  international  controversies. 

Of  course  it  can  not  be  expected  that  the  whole  body  of  any  people 
will  study  international  law ;  but  a  sufficient  number  can  readily  become 
sufficiently  familiar  with  it  to  lead  and  form  public  opinion  in  every 
community  in  our  country  upon  all  important  international  questions 
as  they  arise. 


OPENING  ADDRESS  OF  THE  HONORABLE  ELIHU  ROOT 

AT   THE 

CONFERENCE  OF  TEACHERS  OF  INTERNATIONAL  LAW 
AND  RELATED  SUBJECTS^ 

Gentlemen :  It  gives  me  very  great  pleasure  to  welcome  you  to  par- 
ticipation in  this,  the  Conference  of  Teachers  of  International  Law 
and  Related  Subjects,  held  in  connection  with  the  Eighth  Annual 
Meeting  of  the  American  Society  of  International  Law,  and  to  express 
the  grateful  appreciation  of  the  officers  and  members  of  the  Society 
to  the  instructors  in  international  law  who  have  left  their  customary 
duties,  to  come  here  for  the  purpose  of  taking  part  in  this  conference. 

The  invitation  which  led  to  this  meeting  had  its  origin  in  a  resolu- 
tion which  was  offered  by  that  honored  and  admired  leader  in  Ameri- 
can education,  Mr.  Andrew  D.  White,  at  a  meeting  of  the  Trustees  of 
the  Carnegie  Endowment  for  International  Peace.  One  of  the  divi- 
sions of  work  established  under  that  trust  is  the  Division  of  Inter- 
national Law,  of  which  Dr.  James  Brown  Scott  is  the  head;  and 
Mr.  White,  responding  to  the  double  impulse  of  his  old  enthusiasm 
as  a  teacher  and  organizer  of  education  and  as  a  diplomatist,  as  the 
representative  of  his  country  at  the  court  of  Germany,  and  as  the 
first  delegate  of  his  country  to  the  First  Hague  Conference,  offered 
this  resolution: 

Resolved,  That  the  Executive  Committee  be  directed  to  propose 
and  carry  out,  subject  to  the  approval  of  this  Board,  a  plan  for 
the  propagation,  development,  maintenance  and  increase  of  sound, 
progressive  and  fruitful  ideas  on  the  subject  of  arbitration  and  in- 
ternational law  and  history  as  connected  with  arbitration,  es- 
pecially through  addresses  or  courses  of  lectures  delivered  before 
the  leading  universities,  colleges  and  law  schools  of  the  United 
States,  and  to  report  on  the  same  at  the  next  regular  meeting  of 
the  Board,  or,  should  the  Committee  think  best,  at  a  special  meet- 
ing to  be  called  for  that  purpose. 

In  taking  the  first  steps  in  compliance  with  this  resolution,  the  Ex- 
ecutive Committee  found  it  desirable  to  ascertain,  as  a  basis  of  action. 


iThe  Conference  of  Teachers  was  held  under  the  auspices  of  the  American 
Society  of  International  Law,  and  the  above  address  is  reprinted  from  the 
Proceedings  of  the  Society  for  1914,  p.  250. 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW  0 

what  was  already  being  done  in  the  United  States  along  the  lines  indi- 
cated by  the  resolution;  and,  accordingly,  an  inquiry  was  set  on  foot 
and  prosecuted,  in  which  was  developed  the  state  of  education  upon 
this  subject  in  all  the  leading  colleges  and  universities  and  law  schools 
of  the  country,  and  a  very  full  report  was  made  upon  that  subject. 

The  consideration  of  the  facts  developed  by  that  report  led  to  the 
conclusion  that  the  program,  the  method  of  procedure,  the  scope  of 
enterprise  and  activity  in  the  spirit  of  Mr.  White's  resolution,  were 
something  that  no  individual  and  no  committee  organized  for  any  other 
purpose,  as  was  the  Executive  Committee  of  the  Peace  Endowment, 
could  properly  handle,  could  adequately  deal  with;  and,  accordingly, 
the  suggestion  was  made  that  the  American  Society  of  International 
Law,  which  deals  specifically  with  the  subject-matter  of  the  resolution, 
should  take  it  up,  and  that  the  men  who  know  best  what  is  needed  and 
how  that  shall  be  done  and  can  be  done,  should  come  together  and 
confer  upon  the  subject.  So  you  see  that  the  initial  impulse  which 
brings  you  here  is  a  source  which  must  be  respected  by  every  Ameri- 
can educator,  and  has  a  purpose  which  is  certified  to  by  the  highest 
ability  and  the  broadest  experience. 

I  will  detain  you  from  the  practical  work  which  lies  before  you  in 
organizing  the  conference,  by  only  a  single  suggestion.  The  putting  of 
instruction  in  international  law  in  American  educational  institutions  on 
a  broader  basis,  giving  it  a  wider  scope  and  greater  efficiency,  is  not  a 
mere  matter  of  book  learning.  It  is  not  a  mere  matter  of  science.  It 
is  a  matter  of  patriotic  duty. 

More  and  more,  as  the  years  follow  one  another  with  the  swiftness 
of  our  modern  life,  democracy  is  coming  to  its  own.  More  and  more 
the  people,  the  men  on  the  farms  and  in  the  shops,  the  men  with  the 
pick  and  shovel  in  their  hands,  are  assuming  the  direction  of  the  oper- 
ations of  government,  both  internal  and  external.  More  and  more 
they  are  directly  responsible  for  the  operations  of  government.  Presi- 
dents and  Congresses  more  and  more  look  for  immediate  response 
from  constituencies  upon  the  most  difficult  and  intricate  questions  in 
the  foreign  relations  of  the  country,  questions  the  right  solution  of 
which  requires  broad  knowledge,  which  can  not  be  solved  by  the  im- 
pressions of  the  moment,  which  can  not  be  solved  by  emotional  re- 
sponse to  oratory. 

I  think  no  one  can  study  the  movement  of  the  times  without  real- 
izing that  the  democracy  of  the  world — for  it  is  not  alone  in  this 
country — is  realizing  its  rights  in  advance  of  its  realization  of  its 
duties.     And  that  way  lies  disaster.     That  way  lies  hideous  wrong. 


6  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

That  way  lies  the  exercise  of  the  mighty  powers  of  modern  democracies 
to  destroy  themselves,  to  destroy  the  vitality  of  the  principles  upon 
which  they  depend.  And  there  is  no  duty  more  incumbent  to-day  upon 
the  men  whose  good  fortune  has  made  it  possible  for  them  to  acquire 
a  broader  knowledge  upon  the  subjects  with  which  democracy  deals, 
than  to  become  themselves  leaders  of  opinion  and  teachers  of  their 
people.  Unless  the  popular  will  responds  to  the  instructed  and  com- 
petent leadership  of  opinion  upon  the  vital  questions  of  our  foreign 
relations,  the  worst  impulses  of  democracy  will  control.  At  the  bottom 
of  wise  and  just  action  lies  an  understanding  of  national  rights  and 
national  duties.  Half  the  wars  of  history  have  come  because  of  mis- 
taken opinions  as  to  national  rights  and  national  obligations,  have  come 
from  the  unthinking  assumption  that  all  the  right  is  on  the  side  of  one's 
own  country,  all  the  duty  on  the  side  of  some  other  country.  Now  I 
say  the  thing  most  necessary  for  the  good  of  our  country  in  the  foreign 
relations  which  are  growing  every  year  more  and  more  intricate  and 
critical,  is  that  there  shall  be  intelligent  leadership  of  opinion  as  to 
national  rights  and  national  obligations;  and  nobody  can  bring  that 
about  as  the  educators  of  America  can  bring  it  about.  It  is  in  the  hope 
that  you  will  be  able  to  organize,  to  give  direction  and  wise  guidance 
to  a  systematic  movement  to  accomplish  this  good  service  for  our 
country,  that  I  take  the  deepest  interest  in  this  conference,  and  bid  you 
God-speed  in  your  labors. 


RESOLUTIONS  AND  RECOMMENDATIONS 

OF  THE 

CONFERENCE  OF  TEACHERS  OF  INTERNATIONAL  LAW 
AND  RELATED  SUBJECTS^ 

Whereas^  The  American  Society  of  International  Law,  founded 
for  the  purpose  of  fostering  the  study  of  international  law  and  of 
promoting  the  establishment  of  international  relations  upon  the  basis 
of  law  and  justice,  desiring  the  more  effectually  to  further  these 
objects,  decided  to  call  a  Conference  of  Teachers  of  International 
Law  and  Related  Subjects,  to  consider  the  present  position  and  steps 
for  the  future  development  of  that  study,  and,  to  that  end,  invited 
leading  educational  institutions  of  the  United  States  to  send  dele- 
gates to  take  part  in  such  conference ;  and 

Whereas^  Forty-one  colleges  and  universities  accepted  the  afore- 
said invitation  and  sent  representatives  to  take  part  in  the  conference 
as  follows: 


Boston  University: 
Brown  University: 
University  of  California: 
University  of  Chicago: 
Clark  University: 
Cornell  University: 

Dartmouth  College: 

Dickinson  College: 

George  Washington  University; 

University  of  Georgia: 
Hamilton  College: 

Harvard  University : 

University  of  Illinois: 
John  Hopkins  University: 
University  of  Kansas : 
Lafayette  College: 
Lehigh  University : 


James  F.  Colby 

James  C.  Dunning 

Orrin  K.  McMurray 

Ernst  Freund 

George  H,  Blakeslee 

Samuel  P.  Orth 
(James  F.  Colby 
1  Frank  A.  Updyke 

Eugene  A.  Noble 
J  Charles  Noble  Gregory 
(C.  H.  Stockton 

H.  A.  Nix 

Frank  H.  Wood 
(Eugene  Wambaugh 
I  George  G.  Wilson 

James  W.  Garner 

James  Brown  Scott 

F.  H.  HbDDER 

E.  D.  Warfield 
John  L.  Stewart 


^Reprinted  from  the  Proceedings  of  the  American  Society  of  International 
Law,  1914,  pp.  315  et  seq. 


8 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW 


Louisiana  State  University : 
University  of  Michigan: 
University  of  Minnesota : 
University  of  Missouri: 
University  of  Nebraska : 
College  of  the  City  of  New  York : 
New  York  University: 
Northwestern  University : 
University  of  Notre  Dame: 
Oberlin  College: 
University  of  Pennsylvania: 
University  of  Pittsburgh: 
Princeton  University: 
Swarthmore  College: 
Syracuse  University : 
University  of  Texas: 
Tufts  College: 
Union  College: 
University  of  Virginia: 
Washington  University : 
Western  Reserve  University : 
University  of  West  Virginia : 
University  of  Wisconsin: 
Yale  Universitv: 


Arthur  T.  Prescott 
Jesse  S.  Reeves 
William  A.  Schaper 
John  D.  Lawson 
Edwin  Maxey 
Walter  E.  Clark 
F.  W.  Aymar 
Charles  Cheney  Hyde 
William  Hoynes 
Karl  F.  Geiser 
Leo  S.  Rowe 
Francis  N.  Thorpe 
Philip  Brown 
William  L  Hull 
Earl  E.  S perry 
William  R.  Manning 
Arthur  I.  Andrews 
Charles  J.  Herrick 
Raleigh  C.  Minor 
Edward  C.  Eliot 
Francis  W.  Dickey 
James  M.  Callahan 
Stanley  K.  Hornbeck 
Gordon  E.  Sherman; 


and 


Whereas,  The  said  representatives,  duly  accredited,  convened  in 
the  city  of  Washington,  District  of  Columbia,  and  at  a  series  of 
meetings  held  on  Thursday,  April  23,  1914,  Friday,  April  24,  1914, 
and  Saturday,  April  25,  1914,  considered  the  following  questions: 

1.  Plans  for  increasing  the  facilities  for  the  study  of  inter- 
national law ;  for  placing  the  instruction  on  a  more  uniform 
and  scientific  basis ;  and  for  drawing  the  line  between  under- 
graduate and  graduate  instruction. 

2.  The  question  of  requiring  a  knowledge  of  the  elements  of 
international  law  for  candidates  for  advanced  degrees. 

3.  The  advisability  of  urging  all  institutions  with  graduate 
courses  in  law  to  add  a  course  in  international  law  where 
not  already  given. 

4.  The  advisability  of  calling  the  attention  of  the  State  bar 
examiners  to  the  importance  of  requiring  some  knowledge 
of  the  elements  of  international  law  in  examinations  for 
admission  to  the  bar. 

5.  The  advisability  of  requesting  the  American  Bar  Associ- 
ation,  through   its   appropriate  committee,   to   consider  the 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW  9 

question  of  including  the  study  of  international  law  in  its 
recommendations  for  a  deeper  and  wider  training  for  ad- 
mission to  the  bar. 

6.  The  desirability  and  feasibility  of  plans  for  securing  the 
services  of  professors  or  of  lecturers  on  international  law  to 
whom  can  be  assigned  definite  lecture  periods  in  institutions 
where  international  law  is  not  now  taught  or  is  inadequately 
taught — the  services  to  rotate  between  institutions  where 
they  will  be  acceptable. 

7.  The  advisability  of  requesting  universities  which  now  have 
summer  schools  to  include  among  the  subjects  offered 
courses  on  the  elements  of  international  law,  and,  if  there 
be  occasion  for  it,  to  offer  advanced  courses  of  interest  and 
profit  for  advanced  students  and  instructors. 

Now  THEREFORE^  The  Conference  of  Teachers  of  International 
Law  and  Related  Subjects,  after  careful  consideration  and  detailed 
examination  in  committee  and  thorough  discussion  in  the  full  sessions 
of  the  Conference,  unanimously  adopts  the  following  resolutions,  in 
the  belief  that  the  recommendations  contained  therein,  if  carried  into 
effect,  will  maintain,  develop,  and  increase  sound,  progressive  and 
fruitful  ideas  on  international  law  and  related  subjects: 

Resolution  No.  1 

Resolved,  That  the  Conference  of  Teachers  of  International  Law 
and  Related  Subjects  hereby  recommends  to  the  American  Society 
of  International  Law  the  appointment  of  a  Standing  Committee  of 
the  Society  on  the  Study  and  Teaching  of  International  Law  and 
Related  Subjects,  upon  lines  suggested  by  the  recommendations  of 
the  Conference. 

Resolution  No.  2  [Article  23^] 

Resolved,  That,  in  order  to  increase  the  facilities  for  the  study  of 
international  law,  the  Conference  hereby  recommends  that  the  follow- 
ing steps  be  taken  to  improve  and  enlarge  library  and  reference 
facilities : 

(a)  That  a  carefully  prepared  bibliography  of  international  law 
and  related  subjects  be  published,  with  the  names  of  publishers  and 
prices  so  far  as  these  may  be  obtainable,  with  especial  reference  to 
the  needs  of  poorly  endowed  libraries. 


1  Articles  on  the  same  subject  adopted  by  the  Second  Pan  American  Scientific 
Congress  are  indicated  in  brackets. 


10  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

(b)  That  there  be  pubHshed  likewise  a  carefully  prepared  index 
or  digest  of  the  various  heads  and  sub-heads  in  international  law, 
with  references  to  all  standard  sources  of  authority  upon  each  head. 

(c)  That  there  be  published  in  a  cheap  and  convenient  form  all 
documents  of  state,  both  foreign  and  domestic,  especially  Latin 
American,  bearing  upon  international  law,  including  treaties,  docu- 
ments relating  to  arbitration,  announcements  of  state  policy,  and 
diplomatic  correspondence,  and  that  the  aid  of  the  Department  of 
State  be  solicited  in  securing  copies  of  such  documents  for  publication. 

(d)  That  at  short  intervals  a  bulletin  be  published,  containing 
excerpts  from  the  Congressional  Record  and  other  current  sources, 
giving  reliable  information  upon  international  questions  arising  from 
time  to  time  and  the  final  disposition  of  such  questions. 

(e)  That  a  law  reporter  of  international  cases  be  issued. 

Resolution  No.  3  [Article  24] 

Resolved,  That,  in  order  further  to  increase  the  facilities  for  the 
study  of  international  law,  the  Conference  recommends  that  steps  be 
taken  to  extend  the  study  of  that  subject  by  increasing  the  number 
of  schools  at  which  courses  in  international  law  are  given,  by  increas- 
ing the  number  of  students  in  attendance  upon  the  courses,  and  by 
diffusing  a  knowledge  of  its  principles  in  the  community  at  large,  and, 
more  particularly: 

(a)  That,  as  the  idea  of  direct  government  by  the  people  grows, 
it  becomes  increasingly  essential  to  the  well-being  of  the  world  that 
the  leaders  of  opinion  in  each  community  be  familiar  with  the  rights 
and  obligations  of  states,  with  respect  to  one  another,  as  recognized 
in  international  law.  Hence,  it  has  become  a  patriotic  duty,  resting 
upon  our  educational  institutions,  to  give  as  thorough  and  as  extensive 
courses  as  possible  in  this  subject. 

Cb)  That  a  course  in  international  law,  where  possible,  should 
consist  of  systematic  instruction  extending  over  at  least  a  full  aca- 
demic year,  divided  between  international  law  and  diplomacy. 

(c)  That  prominent  experts  in  international  law  be  invited  from 
time  to  time  to  lecture  upon  the  subject  at  the  several  institutions. 

Resolution  No.  4  [Article  25] 

Resolved,  That,  with  a  view  of  placing  instruction  in  international 
law  upon  a  more  uniform  and  scientific  basis,  the  Conference  makes 
the  following  recommendations: 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW  11 

(a)  In  the  teaching  of  international  law  emphasis  should  be  laid  on 
the  positive  nature  of  the  subject  and  the  definiteness  of  the  rules. 

Whether  we  regard  the  teaching  of  value  as  a  disciplinary  subject 
or  from  the  standpoint  of  its  importance  in  giving  to  the  student  a 
grasp  of  the  rules  that  govern  the  relations  between  nations,  it  is  im- 
portant that  he  have  impressed  upon  his  mind  the  definiteness  and 
positive  character  of  the  rules  of  international  law.  The  teaching 
of  international  law  should  not  be  made  the  occasion  for  a  universal 
peace  propaganda.  The  interest  of  students  and  their  enthusiasm  for 
the  subject  can  best  be  aroused  by  impressing  upon  them  the  evolu- 
tionary character  of  the  rules  of  international  law.  Through  such  a 
presentation  of  the  subject  the  student  will  not  fail  to  see  how  the 
development  of  positive  rules  of  law  governing  the  relations  between 
states  has  contributed  towards  the  maintenance  of  peace. 

(b)  In  order  to  emphasize  the  positive  character  of  international 
law,  the  widest  possible  use  should  be  made  of  cases  and  concrete  facts 
in  international  experience. 

The  interest  of  students  can  best  be  aroused  when  they  are  convinced 
that  they  are  dealing  with  the  concrete  facts  of  international  experi- 
ence. The  marshaling  of  such  facts  in  such  a  way  as  to  develop  or 
illustrate  general  principles  lends  a  dignity  to  the  subject  which  can 
not  help  but  have  a  stimulating  influence. 

Hence,  international  law  should  be  constantly  illustrated  from  those 
sources  which  are  recognized  as  ultimate  authority,  such  as :  (a)  cases, 
both  of  judicial  and  arbitral  determination;  (b)  treaties,  protocols, 
acts,  and  declarations  of  epoch-making  congresses,  such  as  Westphalia 
(1648),  Vienna  (1815),  Paris  (1856),  The  Hague  (1899  and  1907), 
and  London  (1909)  ;  (c)  diplomatic  incidents  ranking  as  precedents 
for  action  of  an  international  character;  (d)  the  great  classics  of 
international  law. 

(c)  In  the  teaching  of  international  law  care  should  be  exercised 
to  distinguish  the  accepted  rules  of  international  law  from  questions 
of  international  policy. 

This  is  particularly  true  of  the  teaching  of  international  law  in 
American  institutions.  There  is  a  tendency  to  treat  as  rules  of  inter- 
national law  certain  principles  of  American  foreign  policy.  It  is  im- 
portant that  the  line  of  division  be  clearly  appreciated  by  the  student. 
Courses  in  the  foreign  policy  of  the  United  States  should  therefore  be 


12  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

distinctly  separated  from  the  courses  in  international  law,  and  the 
principles  of  American  foreign  policy,  when  discussed  in  courses  of 
international  law,  should  always  be  tested  by  the  rules  which  have 
received  acceptance  amongst  civilized  nations. 

(d)  In  a  general  course  on  international  law  the  experience  of  no 
one  country  should  be  allowed  to  assume  a  consequence  out  of  propor- 
tion to  the  strictly  international  principles  it  may  illustrate. 

Resolution  No.  5  [Article  26] 

Resolved,  That  the  Conference  recommends  that  a  major  in  inter- 
national law  in  a  university  course  leading  to  the  degree  of  doctor 
of  philosophy  be  followed,  if  possible,  by  residence  at  The  Hague 
and  attendance  upon  the  Academy  of  International  Law  which  is  to 
be  established  in  that  city;  that  it  is  the  sense  of  the  Conference  that 
no  better  means  could  possibly  be  devised  for  affording  a  just  appreci- 
ation of  the  diverse  national  views  of  the  system  of  international 
law  or  for  developing  that  "international  mind"  which  is  so  essential 
in  a  teacher  of  that  subject;  and  that  therefore  as  many  fellowships 
as  possible  should  be  established  in  the  Academy  at  The  Hague, 
especially  for  the  benefit  of  American  teachers  and  practitioners  of 
international  law. 

Resolution  No.  6  [Article  27] 

■  Resolved,  That  it  is  the  conviction  of  this  Conference  that  the 
present  development  of  higher  education  in  the  United  States  and  the 
place  which  the  United  States  has  now  assumed  in  the  affairs  of  the 
Society  of  Nations  justify  and  demand  that  the  study  of  the  science 
and  historic  applications  of  international  law  take  its  place  on  a  plane 
of  equality  with  other  subjects  in  the  curriculum  of  colleges  and  uni- 
versities and  that  professorships  or  departments  devoted  to  its  study 
should  be  established  in  every  institution  of  higher  learning. 

Resolution  No.  7 

Resolved,  That,  in  order  adequately  to  draw  the  line  between  under- 
graduate and  graduate  instruction  in  international  law,  the  Conference 
makes  the  following  recommendations: 

Assuming  that  the  undergraduate  curriculum  includes  a  course  in 
international  law,  as  recommended  in  Resolution  No.  6,  the  Confer- 
ence suggests  that  graduate  instruction  in  international  law  concerns 
three  groups  of  students : 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW  13 

(a)  Graduate  students  in  law; 

(b)  Graduate  students  in  international  law  and  political  science; 

(c)  Graduate  students  whose  major  subjects  for  an  advanced 
degree  are  in  other  fields,  for  example,  history  or  economics. 

The  first  two  groups  of  students  have  a  professional  interest  in 
international  law,  many  having  in  view  the  teaching  of  the  subject, 
its  practice,  or  the  public  service.  Therefore,  as  to  them,  the  Con- 
ference recommends  that  the  graduate  work  offered  be  distinctively 
of  original  and  research  character,  somewhat  as  outlined  in  Resolu- 
tion No.  4,  following  a  preliminary  training  in  the  fundamental  prin- 
ciples of  the  subject,  as  pursued  in  the  undergraduate  course  or 
courses. 

As  to  those  of  the  third  group,  having  less  professional  interest 
in  international  law,  a  broad  general  course  in  the  subject  is  recom- 
mended. 

Resolution  No.  8 

Resolved,  That  this  Conference  directs  that  a  letter  be  sent  to 
teachers  of  political  science,  law,  history,  political  economy  and  soci- 
ology throughout  the  country  calling  attention  to  and  emphasizing 
the  essential  and  fundamental  importance  of  a  knowledge  of  inter- 
national law  on  the  part  of  students  in  those  branches,  which  letter 
shall  state  the  opinion  of  this  Conference  that  every  college  of  liberal 
arts,  every  graduate  school  and  every  law  school,  should  have  or 
make  provision  for  courses  in  international  law  and  urge  that  all 
graduate  students  working  in  the  above  mentioned  fields  be  advised 
to  include  this  subject  in  their  courses  of  study. 

Resolved,  That,  in  accordance  with  the  preceding  resolution,  there 
be  prepared  and  sent  out  with  this  letter  reprints  of  Senator  Root's 
article  entitled  "The  need  of  popular  understanding  of  international 
law,"  which  appeared  in  vol.  1  of  the  American  Journal  of  Inter- 
national  Lazv,  and  of  his  address  delivered  at  the  opening  of  this 
Conference. 

Resolved,  That  the  Recording  Secretary  of  the  American  Society 
of  International  Law  attend  to  the  drafting,  printing  and  distribution 
of  the  above  specified  letter  and  reprints  and  that  he  is  hereby  au- 
thorized, if  he  sees  fit,  to  send  out  additional  literature  therewith. 

Resolution  No.  9  [Article  28] 

Resolved,  That,  in  recognition  of  the  growing  importance  of  a 
knowledge  of  international  law  to  all  persons  who  plan  to  devote 


14  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

themselves  to  the  administration  of  justice,  and  who,  through  their 
professional  occupation,  may  contribute  largely  to  the  formation  of 
public  opinion  and  who  often  will  be  vested  with  the  highest  offices 
in  the  State  and  nation,  this  Conference  earnestly  requests  all  law 
schools  which  now  offer  no  instruction  in  international  law  to  add 
to  their  curriculum  a  thorough  course  in  that  subject. 

Resolved  further,  That  a  copy  of  this  resolution  be  sent  to  all  law 
schools  in  the  United  States. 

Resolution  No.  10 

Resolved y  That  the  Conference  hereby  calls  the  attention  of  the 
State  bar  examiners  and  of  the  bodies  whose  duty  it  is  to  prescribe 
the  subjects  of  examination,  to  the  importance  of  requiring  some 
knowledge  of  the  elements  of  international  law  in  examinations  for 
admission  to  the  bar,  and  urges  them  to  make  international  law  one 
of  the  prescribed  subjects. 

Resolution  No.  11 

Resolved,  That  the  Conference  hereby  requests  the  American  Bar 
Association  to  take  appropriate  action  toward  including  international 
law  among  the  subjects  taught  in  law  schools  and  required  for  ad- 
mission to  the  bar. 

Resolution  No.  12  [Article  29] 

Resolved,  That  the  Conference  hereby  adopts  the  following  recom- 
mendations : 

(a)  That  it  is  desirable,  upon  the  initiative  of  institutions  where 
instruction  in  international  law  is  lacking,  to  take  steps  toward  pro- 
viding such  instruction  by  visiting  professors  or  lecturers,  this  instruc- 
tion to  be  given  in  courses,  and  not  in  single  lectures,  upon  sub- 
stantive principles,  not  upon  popular  questions  of  momentary  interest, 
and  in  a  scientific  spirit,  not  in  the  interest  of  any  propaganda ; 

(b)  That  members  of  the  American  Society  of  International  Law, 
qualified  by  professional  training,  be  invited  by  the  Executive  Council 
or  the  Executive  Committee  of  the  Society  to  give  such  courses,  and 
that  provision  be  made,  through  the  establishment  of  lectureships 
or  otherwise,  to  bear  the  necessary  expenses  of  the  undertaking; 

(c)  That  the  Standing  Committee  on  the  Study  and  Teaching  of 
International  Law  and  Related  Subjects  of  the  American  Society  of 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW  15 

International  Law,  the  appointment  of  which  was  recommended  in 
Resolution  No.  1,  be  requested  to  ascertain  what  institutions  are  in 
need  of  additional  instruction  in  international  law  and  endeavor  to 
find  means  of  affording  such  assistance  as  may  be  necessary  to  the 
teaching  staif  of  the  said  institutions  or  of  supplying  this  additional 
instruction  by  lecturers  chosen  by  the  said  Committee  and  approved  by 
the  Executive  Council  or  Executive  Committee; 

(d)  That  steps  be  taken  to  bring  to  the  attention  of  every  college 
at  present  not  offering  instruction  in  international  law  the  importance 
of  this  subject  and  the  readiness  of  the  American  Society  of  Inter- 
national Law,  through  its  Standing  Committee  on  the  Study  and 
Teaching  of  International  Law  and  Related  Subjects,  to  cooperate 
with  such  institutions  in  introducing  or  stimulating  instruction. 

Resolution  No.  13 

Resolved,  That  this  Conference  hereby  requests  and  recommends 
that  universities  having  summer  schools  offer  summer  courses  in  inter- 
national law. 

Resolved  further,  That  the  American  Society  of  International  Law, 
through  its  Standing  Committee  on  the  Study  and  Teaching  of  Inter- 
national Law  and  Related  Subjects,  is  hereby  requested  to  endeavor 
to  stimulate  a  demand  for  courses  in  international  law  in  summer 
schools. 

Resolution  No.  14  [Article  30] 

Resolved,  That  the  Conference  recommends  the  establishment  and 
encouragement  in  collegiate  institutions  of  specialized  courses  in  prep- 
aration for  the  diplomatic  and  consular  services. 

Resolution  No.  15  [Article  31] 

Resolved,  That  the  Conference  recommends  that  the  study  of  inter- 
national law  be  required  in  specialized  courses  in  preparation  for 
business. 

Resolution  No.  16 

Resolved,  That  a  Committee  of  Revision,  consisting  of  ten  mem- 
bers, of  which  Mr.  James  Brown  Scott  shall  be  chairman  ex  officio, 
be  appointed  by  the  Chair  for  the  revision  in  matters  of  form  of 
the  various  resolutions  and  recommendations  made  to  this  Conference 
by  the  different  committees  and  subcommittees  and  adopted  by  it. 


16  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

the  said  Committee  of  Revision  to  send  a  copy  of  the  said  resolutions 
and  recommendations  to  every  law  school,  college  and  university  in  the 
United  States  and  to  the  American  Society  of  International  Law, 
through  its  Executive  Council  or  Executive  Committee,  for  such 
action  as  will  serve  to  effectuate  the  recommendations  of  the  Con- 
ference. 


The  undersigned,  members  of  the  Committee  of  Revision,  duly 
appointed  in  accordance  with  Resolution  No.  16,  having  carefully 
considered  the  resolutions  and  recommendations  referred  to  them  by 
the  Conference,  have  prepared  them  in  the  foregoing  form,  and 
direct  that  they  be  transmitted  by  the  Chairman  of  the  Committee 
to  the  institutions  and  Society  mentioned  in  Resolution  No.  16. 

James  Brown  Scott,  Chairman, 

Robert  Bacon, 

George  H.  Blakeslee, 

Philip  Brown, 

James  F.  Colby, 

Edward  C.  Eliot, 

John  W.  Foster, 

William  I.  Hull, 

John  D.  Lawson, 

William  R.  Manning 

Elihu  Root. 

Washington,  D.  C,  April  25,  1914. 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW 
ADOPTED  BY  THE  SECOND  PAN  AMERICAN  SCIENTIFIC 

CONGRESS^ 

Article  23  [Resolution  No.  2^] 

The  Second  Pan  American  Scientific  Congress  recommends,  in  order 
to  increase  the  study  of  international  law,  to  popularize  its  just  prin- 
ciples, and  to  secure  its  observance  and  application  in  the  mutual  rela- 
tions of  the  Americas,  that  steps  be  taken  to  improve  and  to  enlarge 
library  and  reference  facilities: 

(a)  By  preparing  and  publishing  a  bibliography  of  international  law 
and  related  subjects,  furnishing  the  names  of  publishers  and  prices  so 
far  as  these  are  obtainable,  with  special  reference  to  the  needs  of 
poorly  endowed  libraries ; 

(b)  By  preparing  and  publishing  a  carefully  prepared  index  or 
digest  of  the  various  heads  and  subheads  of  international  law,  with 
references  to  standard  sources  of  authority  under  each  head  and  sub- 
head thereof; 

(c)  By  collecting  with  the  aid  wherever  possible  of  ministries  of 
foreign  affairs  and  publishing  from  official  copies  thus  secured,  in 
cheap  and  convenient  form,  all  official  documents,  both  foreign  and 
domestic,  bearing  upon  international  law,  including  therein  treaties, 
information  relating  to  arbitration,  announcements  of  national  policy, 
and  diplomatic  correspondence; 

(d)  By  issuing  in  the  form  of  law  reports  judgments  of  national 
courts  involving  questions  of  international  law,  the  sentences  of  arbitral 
tribunals  and  the  awards  of  mixed  commissions. 

Article  24  [Resolution  No.  3] 

The  Second  Pan  American  Scientific  Congress  is  of  the  firm  con- 
viction that,  as  the  idea  of  direct  government  by  the  people  grows,  it 
becomes  increasingly  essential  to  the  well-being  of  the  world  that  the 
leaders  of  opinion  in  each  community  be  familiar  with  the  duties  and 
obligations  as  well  as  with  the  rights  of  states,  as  recognized  in  inter- 


iHeld  at  Washington,  December  27,  1915-January  8,  1916. 
^Resolutions  on  the  same  subject  adopted  by  the  Conference  of  Teachers  are 
indicated  in  brackets. 


18  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

national  law,  and  that  it  has  become  a  patriotic  duty  resting  upon  our 
educational  institutions  to  give  as  thorough  and  as  extensive  courses 
as  possible  in  international  law  and  related  subjects.  The  Congress 
therefore  recommends: 

I.  That  steps  be  taken  to  extend  the  study  of  the  subject: 

(a)  By  increasing  the  number  of  schools  and  institutions  in  which 
international  law  and  related  subjects  are  taught; 

(b)  By  increasing  the  number  of  students  in  attendance  upon  the 
courses;  and 

(c)  By  diffusing  a  knowledge  of  its  principles  in  each  American 
republic. 

II.  That  a  course  in  international  law,  where  possible,  should  con- 
sist of  systematic  instruction  during  at  least  a  full  academic  year, 
divided  between  international  law  and  diplomacy;  and 

III.  That  prominent  experts  in  international  law  and  diplomacy  be 
invited  from  time  to  time  to  lecture  upon  these  subjects  in  the  insti- 
tutions of  learning  of  the  American  republics. 

Article  25  [Resolution  No.  4] 

The  Second  Pan  American  Scientific  Congress,  in  order  to  place 
instruction  in  international  law  upon  a  more  uniform  and  scientific 
basis,  recommends  that: 

(a)  In  the  teaching  of  international  law  emphasis  be  laid  upon  the 
positive  nature  of  the  subject  and  the  definiteness  of  the  rules,  for 
whether  the  teaching  of  international  law  be  regarded  as  of  value  as 
a  disciplinary  subject  or  from  the  standpoint  of  its  importance  in  giving 
to  the  student  a  grasp  of  the  rules  that  govern  the  relations  of  nations, 
it  is  equally  important  that  he  have  impressed  upon  his  mind  the 
definiteness  and  positive  character  of  the  rules  of  international  law; 
that  the  teaching  of  international  law  be  not  made  the  occasion  for  a 
universal  peace  propaganda;  that  the  interests  of  the  students  in  and 
their  enthusiasm  for  the  subject  can  best  be  aroused  by  impressing 
upon  them  the  evolutionary  character  of  the  rules  of  international  law, 
for  through  such  a  presentation  of  the  subject  the  student  will  not 
fail  to  see  that  the  development  of  positive  rules  of  law  governing  the 
relations  of  states  has  contributed  toward  the  maintenance  of  peace. 

(b)  In  order  to  emphasize  the  positive  character  of  international 
law  the  widest  possible  use  be  made  of  cases  and  the  concrete  facts  of 
international    experience,   for   the   interest   of    students   can   best  be 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW  19 

aroused  when  they  are  convinced  that  they  are  dealing  with  such  con- 
crete facts,  and  that  the  marshaling  of  such  facts  in  such  a  way  as  to 
develop  or  illustrate  general  principles  lends  dignity  to  the  subject, 
which  can  not  help  but  have  a  stimulating  influence ;  that  international 
law  should  be  constantly  illustrated  from  the  sources  recognized  as 
ultimate  authority,  such  as  cases  both  of  judicial  and  arbitral  deter- 
mination; treaties,  protocols,  acts,  and  declarations  of  epoch-making 
congresses,  such  as  Westphalia  (1648),  Vienna  (1815),  Paris  (1856), 
The  Hague  (1899  and  1907),  and  London  (1909);  diplomatic  inci- 
dents ranking  as  precedents  for  action  of  an  international  character; 
and  the  great  classics  of  international  law. 

(c)  In  the  teaching  of  international  law  care  be  exercised  to  distin- 
guish the  accepted  rules  of  international  law  from  questions  of  inter- 
national policy. 

(d)  In  a  general  course  on  international  law  the  experience  of  no 
one  country  be  allowed  to  assume  a  consequence  out  of  proportion  to 
the  strictly  international  principles  it  may  illustrate. 

Article  26  [Resolution  No.  5] 

The  Second  Pan  American  Scientific  Congress,  in  order  still  further 
to  advance  the  cause  of  international  law  and  the  development  of 
international  justice,  recommends  that  a  major  in  international  law  in 
a  university  course,  leading  to  the  degree  of  doctor  of  philosophy,  be 
followed  if  possible  by  residence  at  The  Hague  in  attendance  upon  the 
Academy  of  International  Law,  installed  in  1914  in  the  Peace  Palace 
in  that  city;  and  that,  as  no  better  means  has  been  devised  for  afford- 
ing a  just  appreciation  of  the  diverse  and  conflicting  national  views 
'Concerning  international  law  or  for  developing  that  * 'international 
mind"  which  is  so  essential  in  a  teacher  of  that  subject,  as  many  fel- 
lowships as  possible  should  be  established  in  the  Academy  at  The 
Hague  and  put  at  the  disposition  of  advanced  students  of  international 
law  in  the  different  American  republics. 

Article  27  [Resolution  No.  6] 

The  Second  Pan  American  Scientific  Congress  expresses  the  opinion 
that  the  present  development  of  higher  education  in  the  American 
republics  and  the  place  which  they  have  now  assumed  in  the  affairs 
of  the  society  of  nations  justify  and  demand  that  the  study  of  the 
science  and  historic  applications  of  international  law  be  treated  on  a 


20  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

plane  of  equality  with  other  subjects  in  the  curriculum  of  colleges  and 
universities,  and  that  professorships  or  departments  devoted  to  its 
study  be  established  where  they  do  not  exist  in  every  institution  of 
higher  learning. 

Article  28  [Resolution  No.  9] 

The  Second  Pan  American  Scientific  Congress,  recognizing  the 
growing  importance  of  a  knowledge  of  international  law  to  all  persons 
who  intend  to  devote  themselves  to  the  administration  of  justice,  and 
who,  through  their  professional  occupation,  may  contribute  largely 
to  the  formation  of  public  opinion  and  who  may  often  be  vested  with 
the  highest  offices  in  the  state  and  nation,  earnestly  requests  all  law 
schools  which  now  offer  no  instruction  in  international  law  to  add  to 
their  curriculum  a  thorough  course  in  that  subject. 

Article  29  [Resolution  No.  12] 

The  Second  Pan  American  Scientific  Congress  regards  it  as  highly 
desirable,  upon  the  initiative  of  institutions  where  instruction  in  inter- 
national law  is  lacking,  to  take  steps  toward  providing  such  instruc- 
tion by  visiting  professors  or  lecturers,  this  instruction  to  be  given  in 
courses,  and  not  in  single  lectures,  upon  substantive  principles,  not 
upon  popular  questions  of  momentary  interest,  and  in  a  scientific  spirit,, 
not  in  the  interest  of  any  propaganda. 

Article  30  [Resolution  No.  14] 

The  Second  Pan  American  Scientific  Congress  recommends  the 
establishment  and  encouragement  in  institutions  of  specialized  courses 
in  preparation  for  the  diplomatic  and  consular  services. 

Article  31  [Resolution  No.  15] 

The  Second  Pan  American  Scientific  Congress  advises  that  the 
study  of  international  law  be  required  in  specialized  courses  in  prepa- 
ration for  business. 

Article  32 

The  Second  Pan  American  Scientific  Congress  urges  that  in  the 
study  and  teaching  of  international  law  in  American  institutions  of 
learning  special  stress  be  laid  upon  problems  affecting  the  American 
republics  and  upon  doctrines  of  American  origin. 


RECOMMENDATIONS  ON  INTERNATIONAL  LAW  21 

Article  33 

The  Second  Pan  American  Scientific  Congress  extends  to  the  Ameri- 
can Institute  of  International  Law  a  cordial  welcome  into  the  circles 
of  scientific  organizations  of  Pan  America,  and  records  a  sincere  wish 
for  its  successful  career  and  the  achievement  of  the  highest  aims  of 
its  important  labors. 

Article  34 

The  Second  Pan  American  Scientific  Congress  recommends  to  all 
educational  establishments  of  America  the  special  study  of  the  con- 
stitutions, laws,  and  institutions  of  the  republics  of  this  continent. 

Article  35 

The  Second  Pan  American  Scientific  Congress  recommends  to  the 
various  universities  of  the  American  republics  that  a  comparative 
study  of  judicial  institutions  be  undertaken  in  order — 

(a)  To  create  special  interest  therein  in  the  several  countries  of  the 
continent ; 

(b)  To  facilitate  the  knowledge  and  solution  of  problems  of  private 
international  law  in  the  American  countries;  and 

(c)  To  bring  about  as  far  as  possible  uniformity  in  jurisprudence 
and  legislation. 

Article  36 

The  Second  Pan  American  Scientific  Congress,  in  order  to  broaden 
the  outlook  and  to  bring  into  closer  contact  the  members  of  the  legal 
profession,  urges  that  the  bar  association  exchange  among  themselves  : 

(a)  Law  books  and  publications  affecting  the  legal  professions  and 
the  practice  of  law. 

(b)  New  codes  of  law  and  rules  of  procedure  as  they  are  hereafter 
published. 


OFFICIAL  COMMENTARY  ON  THE  RECOMMENDATIONS 

ON  INTERNATIONAL  LAW  OF  THE  SECOND 

PAN  AMERICAN  SCIENTIFIC  CONGRESS^ 

Article  2^  [Resolution  No.  2^] 

The  Second  Pan  American  Scientific  Congress  recommends,  in 
order  to  increase  the  study  of  international  law,  to  popularize  its 
just  principles,  and  to  secure  its  observance  and  application  in  the 
mutual  relations  of  the  Americas,  that  steps  he  taken  to  improve 
and  to  enlarge  library  and  reference  facilities: 

(a)  By  preparing  and  publishing  a  bibliography  of  interna- 
tional law  and  related  subjects,  furnishing  the  names  of  pub- 
lishers and  prices  so  far  as  these  are  obtainable,  with  special  ref- 
erence to  the  needs  of  poorly  endowed  libraries; 

(b)  By  preparing  and  publishing  a  carefully  prepared  index  or 
digest  of  the  various  heads  and  subheads  of  international  law, 
with  references  to  standard  sources  of  authority  under  each  head 
and  subhead  thereof; 

(c)  By  collecting  with  the  aid  wherever  possible  of  ministries 
of  foreign  affairs  and  publishing  from  official  copies  thus  secured, 
in  cheap  and  convenient  form,  all  official  documents,  both  foreign 
and  domestic,  bearing  upon  international  law,  including  therein 
treaties,  information  relating  to  arbitration,  announcements  of  na- 
tional policy,  and  diplomatic  correspondence; 

(d)  By  issuing  in  the  form  of  law  reports  judgments  of  na- 
tional courts  involving  questions  of  international  law,  the  sen- 
tences of  arbitral  tribunals  and  the  awards  of  mixed  commissions. 

The  subject  of  the  study  of  international  law  was  considered  in  very- 
great  detail  at  a  conference  of  American  teachers  of  international  law, 
held  at  the  City  of  Washington  in  the  month  of  April,  1914,  under  the 
auspices  of  the  American  Society  of  International  Law.  Forty-one 
institutions  of  learning  of  the  United  States  accepted  the  invitation  to 
be  present  and  sent  accredited  representatives  to  take  part  in  the  pro- 
ceedings. 

The  result  was  a  series  of  recommendations,  unanimously  adopted 
by  the  conference,  which  form  the  basis  of  the  present  articles  relating 
to  the  study  of  the  law  of  nations,  with  omissions  and  other  modifica- 
tions in  order  to  make  the  recommendations  apply  to  the  republics  of 


iHeld  in  Washington,  December  27,  1915-January  8,  1916. 
^Resolutions  on  the  same  subject  adopted  by  the  Conference  of  Teachers  are 
indicated  in  brackets. 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      23 

the  American  continent  instead  of  applying  solely  to  the  republic  of 
the  North  in  which  the  conference  of  teachers  was  held. 

In  an  article  written  by  the  Honorable  Elihu  Root  when  Secretary 
of  State,  and  published  as  the  introduction  to  the  first  number  of  the 
American  Journal  of  International  Law  in  1907,  he  called  attention  to 
the  conditions  required  for  the  settlement  of  international  disputes 
without  resort  to  war,  stating  that  the  people  of  the  countries  involved 
should  be  able  to  weigh  the  controversy  and  to  appreciate  the  action 
of  their  representatives  in  an  instructed  and  reasonable  way,  stating 
also  that  one  means  of  bringing  about  this  instructed  and  reasonable 
way  was  by  means  of  a  wider  and  broader  knowledge  of  the  principles 
of  international  law  and  by  the  creation  of  an  international  habit  on  the 
part  of  the  people  of  reading  and  thinking  about  international  matters. 
The  language  of  Mr.  Root  on  this  point  is,  if  possible,  the  more  im- 
portant, as  when  uttering  it  he  was  speaking  under  the  responsibility  of 
office,  shortly  after  his  return  from  his  visit  to  Latin  America.  It 
therefore  seems  advisable  to  quote  two  paragraphs  from  the  article  as 
a  general  introduction  to  this  section  of  the  report : 

In  the  great  business  of  settling  international  controversies  with- 
out war,  whether  it  be  by  negotiation  or  arbitration,  essential  con- 
ditions are  reasonableness  and  good  temper,  a  willingness  to  recog- 
nize facts  and  to  weigh  arguments  which  make  against  one's  own 
country  as  well  as  those  which  make  for  one's  own  country ;  and 
it  is  very  important  that  in  every  country  the  people  w^hom  negotia- 
tors represent  and  to  whom  arbitrators  must  return,  shall  be  able 
to  consider  the  controversy  and  judge  the  action  of  their  repre- 
sentatives in  this  instructed  and  reasonable  way. 

One  means  to  bring  about  this  desirable  condition  is  to  in- 
crease the  general  public  knowledge  of  international  rights  and 
duties  and  to  promote  a  popular  habit  of  reading  and  thinking 
about  international  affairs.  The  more  clearly  the  people  of  a 
country  understand  their  own  international  rights  the  less  likely 
they  are  to  take  extreme  and  extravagant  views  of  their  rights  and 
the  less  likely  they  are  to  be  ready  to  fight  for  something  to  which 
they  are  not  really  entitled.  The  more  clearly  and  universally  the 
people  of  a  country  realize  the  international  obligations  and  duties 
of  their  country,  the  less  likely  they  will  be  to  resent  the  just  de- 
mands of  other  countries  that  those  obligations  and  duties  be  ob- 
served. The  more  familiar  the  people  of  a  country  are  with  the 
rules  and  customs  of  self-restraint  and  courtesy  between  nations 
which  long  experience  has  shown  to  be  indispensable  for  preserv- 
ing the  peace  of  the  world,  the  greater  will  be  the  tendency  to  re- 
'        frain  from  publicly  discussing  controversies  with  other  countries 


24  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

in  such  a  way  as  to  hinder  peaceful  settlement  by  wounding  sensi- 
bilities or  arousing  anger  and  prejudice  on  the  other  side. 

At  the  Conference  of  Teachers  of  International  Law,  under  the 
presidency  of  Mr.  Root,  he  delivered  an  address  in  which,  while  dwell- 
ing upon  the  importance  of  international  law,  he  called  attention  to  the 
fact  that  more  and  more  democracy  was  coming  to  its  own  and  that 
unless  democracy  were  educated  in  its  duties  as  well  as  in  its  rights  it 
would  not  render  the  services  which  could  properly  be  expected  of  it 
and  which  would  justify  its  existence.    On  this  particular  point  he  said : 

I  think  no  one  can  study  the  movement  of  the  times  without 
realizing  that  the  democracy  of  the  world — for  it  is  not  alone  in 
this  country — is  realizing  its  rights  in  advance  of  its  realization 
of  its  duties.  And  that  way  lies  disaster.  That  way  lies  hideous 
wrong.  That  way  lies  the  exercise  of  the  mighty  pK>wers  of  mod- 
ern democracies  to  destroy  themselves,  to  destroy  the  vitality 
of  the  principles  upon  which  they  depend.  And  there  is  no  duty 
more  incumbent  to-day  upon  the  men  whose  good  fortune  has 
made  it  possible  for  them  to  acquire  a  broader  knowledge  upon  the 
subjects  with  which  democracy  deals,  than  to  become  themselves 
leaders  of  opinion  and  teachers  of  their  people.  Unless  the 
popular  will  responds  to  the  instructed  and  competent  leadership 
of  opinion  upon  the  vital  questions  of  our  foreign  relations,  the 
worst  impulses  of  democracy  will  control.  At  the  bottom  of 
wise  and  just  action  lies  an  understanding  of  national  rights  and 
national  duties.  Half  the  wars  of  history  have  come  because  of 
mistaken  opinions  as  to  national  rights  and  national  obligations, 
have  come  from  the  unthinking  assumption  that  all  the  right  is 
on  the  side  of  one's  own  country,  all  the  duty  on  the  side  of  some 
other  country.  Now  I  say  the  thing  most  necessary  for  the  good 
of  our  country  in  the  foreign  relations  which  are  growing  every 
year  more  and  more  intricate  and  critical,  is  that  there  shall  be 
intelligent  leadership  of  opinion  as  to  national  rights  and  national 
obligations. 

These  quotations  have  been  made,  both  from  the  article  and  the 
address  of  Mr.  Root  because  they  justify  of  themselves  the  recom- 
mendations made  by  the  Congress  in  regard  to  international  law.  The 
recommendations  are  twofold;  first,  to  broaden  and  deepen  instruc- 
tion in  international  law  in  American  seats  of  learning;  and  second, 
to  reach  the  peoples  of  the  American  continent,  impressing  them  with 
their  duties  in  matters  international  and  instructing  them  in  their  inter- 
national rights. 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      25 

The  four  headings  of  Article  23,  numbered  respectively  (a),  (b), 
(c),  and  (d),  are  meant  to  furnish  teacher  and  student  with  necessary- 
information  concerning  the  books  and  treatises  dealing  with  inter- 
national law ;  to  supply  the  references  to  standard  sources  of  authority 
on  the  different  headings  of  international  law;  to  secure  the  official 
documents,  both  foreign  and  domestic,  issued  by  the  various  govern- 
ments bearing  upon  international  law,  relating  to  treaties,  arbitrations, 
and  the  international  policy  of  the  different  governments;  and  to 
place  at  the  disposal  of  teacher  and  student  decisions  of  national  and 
of  international  courts  involving  questions  of  international  law.  Ex- 
perience shows  that  it  is  difficult  to  keep  abreast  of  treatises  and  mono- 
graphs dealing  with  international  law,  issued  from  time  to  time  in 
different  countries  and  in  various  languages,  and  that  it  is  no  easy 
matter  to  obtain  these  books  and  monographs  unless  the  prospective 
purchaser  has  relations  with  the  libraries  or  publishers  of  the  different 
foreign  countries  in  which  they  appear.  The  Congress  felt  that  the 
publication  of  a  carefully  prepared  bibliography  of  international  law 
and  related  subjects,  giving  the  names  of  pubHshers  and  prices,  would 
tend  greatly  to  popularize  international  law  and  bring  the  items  con- 
tained in  the  bibliography  not  only  to  the  notice  of  the  libraries  where 
the  books  in  question  were  not  to  be  found,  but  also  exert  indirect  but 
substantial  pressure  upon  these  libraries  to  procure  the  publications  for 
the  benefit  of  their  readers. 

It  often  happens  that  the  reader  of  a  newspaper  becomes  so  inter- 
ested in  the  subject  of  which  he  is  reading  that  he  would  like  to  obtain 
additional  information  if  he  had  at  hand  a  ready-reference  manual. 
This  is  particularly  the  case  at  the  present  day,  when  questions  of  in- 
ternational law  are  uppermost  in  the  minds  and  thoughts  of  men  and 
when  they  occupy  such  a  prominent  place  in  the  daily  press.  A  manual 
or  treatise  of  international  law  is  not  always  at  hand,  and  in  the  chang- 
ing conditions  of  international  life  and  experience  many  topics  which 
were  unknown  a  decade  ago  and  which  are  unmentioned  in  recent 
works  of  authority  are  of  the  utmost  importance  at  the  present  day. 
An  index  or  digest,  brought  up-to-date  and  kept  up-to-date  of  the 
various  heads  and  subheads  in  international  law,  with  references  to 
standard  sources  of  authority  upon  each  head,  would  be  of  no  little 
service  in  enabling  journalists  to  create  a  correct  public  opinion  and  in 
enabling  the  readers  to  follow  up  a  subject  which  interested  them,  and 


26  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

by  so  doing  to  take  part  in  creating  the  enlightened  public  opinion 
upon  which  the  administration  of  justice  is  so  largely  founded. 

The  importance  placed  upon  public  opinion  by  countries  which  are 
unfortunately  at  war  is  evidenced  by  the  fact  that  each  of  them  has 
published  the  telegrams  and  other  documents,  either  in  whole  or  in 
part,  exchanged  by  them  before  the  outbreak  of  the  great  war  in  the 
summer  of  1914,  and  it  is  a  fact  that  these  documents  are  issued  by  the 
belligerent  governments  not  only  in  their  own  but  in  foreign  languages^ 
which  can  only  mean  that  the  appeal  is  made  not  merely  to  their 
citizens  or  subjects  but  also  to  enlightened  and  instructed  opinion  in 
foreign  countries  in  the  hope  of  winning  its  support. 

The  Congress  recognized  the  importance  of  a  knowledge  of  the  dip- 
lomatic correspondence  bearing  upon  international  law,  of  treaties 
and  of  the  authoritative  statements  of  national  policy  issued  by  gov- 
ernments, by  recommending  that  copies  of  such  documents  be  secured 
from  ministries  of  foreign  affairs,  and  that  they  be  published  in  cheap 
and  convenient  form,  so  that  they  may  not  only  reach  the  hands  of 
professional  students  but  that  they  may  also  fall  under  the  eye  of  the 
general,  and  indeed  of  the  casual,  reader.  Knowledge  of  this  kind  is 
especially  valuable  to  democracies  where  in  last  resort  the  people  pass 
upon  the  acts  of  the  government  and  where  the  issues  of  war  and  of 
peace  depend  upon  the  enlightenment  or  ignorance  of  the  public.  It  is 
not  enough  that  documents  of  this  kind  be  made  public ;  they  must  be 
circulated  if  the  actions  of  the  government  are  to  be  weighed  with  in- 
telligence; and  unless  they  are  issued  in  cheap  and  convenient  form 
they  will  not  be  circulated  and  will  be  little  better  than  secret  docu- 
ments preserved  in  archives  beyond  the  reach  of  the  public. 

It  is  common  knowledge  that  international  law  has  a  preferred 
position  in  the  jurisprudence  of  the  American  republics;  that,  whether 
by  constitution,  statute  or  custom,  it  is  regarded  as  a  part  of  the  law  of 
each  country  and  is  administered  as  national  law  in  cases  depending 
upon  its  application.  This  is  believed  to  be  the  case  in  varying  de- 
grees in  other  civilized  countries.  This  being  so,  it  is  natural  that 
many  and  important  principles  of  international  law  are  to  b^  found  in 
domestic  judgments,  and  as  an  illustration  of  this  it  may  be  said  that 
upon  calculation,  there  are  some  twenty-eight  hundred  cases,  decided 
by  the  Supreme  Court  of  the  United  States  since  the  organization  of 
the  Supreme  Court  in  1789,  which  involve  in  a  larger  or  lesser  degree 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      27 

principles  of  international  law.  It  is  therefore  of  very  great  impor- 
tance for  the  future  of  international  relations  to  understand  clearly 
that  international  law  is  thus  susceptible  of  judicial  interpretation  (be- 
cause it  has  been  interpreted  and  applied  judicially  not  only  in  one 
country  but  in  the  countries  generally)  and  that  there  already  exists 
a  large  body  of  judicial  precedent,  not  merely  in  prize  cases  but  in  all 
justiciable  cases  involving  questions  of  international  law,  for  the  guid- 
ance of  that  international  court  which  will  one  day  administer  justice 
between  the  nations,  as  national  courts  administer  justice  between  man 
and  man  in  every  country  making  a  pretense  to  civilization. 

These  judgments,  although  not  gathered  together  in  any  one  place, 
are  nevertheless  to  be  found  in  the  reports  of  judicial  proceedings, 
and  it  would  be  a  very  great  service  if  these  decisions  were  collected 
in  appropriate  volumes  and  placed  at  the  disposal  of  professed  students 
of  international  law.  But  it  is  of  equal  if  not  of  greater  importance 
that  the  sentences  of  arbitral  tribunals  and  the  awards  of  international 
commissions  be  collected  and  published,  in  addition  to  the  judgments 
of  national  courts  involving  questions  of  international  law,  in  order 
that  the  students  of  any  one  country  may  have  before  them  the  ad- 
judged cases  dealing  with  international  law,  whether  they  be  decided 
by  national  courts,  arbitral  tribunals,  or  mixed  commissions. 

The  Congress  therefore  recommended  that  a  law  reporter  of  in- 
ternational cases  be  issued.  To  explain  exactly  the  meaning  of  this 
recommendation,  it  should  be  borne  in  mind  that  the  judgments  of  the 
Supreme  Court  of  the  United  States  are  issued  in  official  reports  and 
that  the  decisions  of  the  Federal  and  the  State  courts  are  likewise 
published  serially  in  permanent  form.  It  is  proposed  that  an  inter- 
national reporter  should  do  for  the  decisions  of  international  and  na- 
tional courts  turning  up>on  questions  of  international  law  what  the 
various  reports  issued  in  the  United  States  have  done  for  the  decisions 
of  Federal  and  State  courts.  It  is  difficult  to  overestimate  the  service 
which  collections  of  the  older  decisions  and  of  the  future  holdings 
of  national  and  international  courts  would  render  to  the  cause  of 
international  justice,  and  the  very  great  impetus  which  such  collections 
would  give  to  the  establishment  of  an  international  court  of  justice,  by 
showing  that  international  law  can  be  interpreted  and  applied  judicially 
in  the  future  because  it  has  been  so  interpreted  and  applied  in  times 
past  as  well  as  in  the  immediate  present. 


28  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

Article  24  [Resolution  No.  5] 

The  Second  Pan  American  Scientific  Congress  is  of  the  firm 
conviction  that,  as  the  idea  of  direct  government  by  the  peopl(f_ 
grows,  it  becomes  increasingly  essential  to  the  well-being  of  the 
world  that  the  leaders  of  opinion  in  each  community  be  familiar 
with  the  duties  and  obligations  as  well  as  with  the  rights  of  states, 
as  recognized  in  international  law,  and  that  it  has  become  a 
patriotic  duty  resting  upon  our  educational  institutions  to  give  as 
thorough  and  as  extensive  courses  as  possible  in  international  law 
and  related  subjects.    The  Congress  therefore  recommends: 

I.  That  steps  be  taken  to  extend  the  study  of  the  subject: 

(a)  By  increasing  the  number  of  schools  and  institutions  in 
which  international  law  and  related  subjects  are  taught; 

(b)  By  increasing  the  number  of  students  in  attendance  upon 
the  courses;  and 

(c)  By  diffusing  a  knowledge  of  its  principles  in  each  Ameri- 
can republic. 

II.  That  a  course  in  international  law,  where  possible,  should 
consist  of  systematic  instruction  during  at  least  a  full  academic 
year,  divided  between  international  law  and  diplomacy;  and 

III.  That  prominent  experts  in  international  law  and  diplomacy 
be  invited  from  time  to  time  to  lecture  upon  these  subjects  in  the 
institutions  of  learning  of  the  American  republics. 

The  recommendation  in  Article  24  is  general  in  its  nature  and  is 
aimed  to  supply  not  only  professional  students  but  the  general  public 
with  information  useful  to  both  in  forming  what  Dr.  Nicholas  Murray 
Butler  has  aptly  termed  "the  international  mind."  The  recommenda- 
tions under  this  article  are  specific  in  their  nature  and  aim  to  increase 
instruction  in  American  institutions  of  learning  where  courses  of  in- 
ternational law  are  given,  and  to  secure  the  introduction  of  courses  on 
international  law  and  diplomacy  in  institutions  where  they  unfortu- 
nately are  not  given  at  present.  The  purpose  of  this  section  is  not  so 
much  to  scatter  the  principles  of  international  law  broadcast  among 
the  people  as  to  impress  students  at  American  institutions  of  learning 
with  the  importance  of  international  law  and  its  principles,  so  that  the 
leaders  of  opinion,  who  may  have  studied  in  American  institutions  of 
learning,  may,  while  they  are  still  open  to  conviction,  be  impressed 
with  the  necessity  of  a  knowledge  of  international  law  and  of  inter- 
national relations. 

The  Congress  regarded  knowledge  of  international  law  as  not  merely 
useful  but  as  essential,  and  declared  it  to  have  become,  by  reason  of 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      29 

the  democratic  control  everywhere  existing  in  the  western  continent, 
a  patriotic  duty. 

In  prescribing  that  systematic  instruction  which  should  be  offered 
during  a  full  academic  year  and  that  the  course  should  include  inter- 
national law  and  diplomacy,  the  Congress  did  not  mean  that  only  one 
year  should  be  devoted  to  international  law  and  that  the  course  should 
be  devoted  only  to  international  law,  in  the  technical  sense  of  the  term, 
and  to  diplomacy.  The  Congress  had  in  mind  the  minimum,  not  the 
maximum,  of  instruction,  and  declared  its  opinion  that,  to  be  effective, 
the  course  of  instruction  should  not  be  confined  merely  to  the  principles 
of  international  law  in  the  abstract  but  that  instruction  should  be 
given  in  diplomacy  and  in  the  fundamental  principles  of  foreign  policy, 
so  that  the  student  might  understand  the  agency  by  which  the  prin- 
ciples of  international  law  are  applied  in  the  relations  between  countries 
and  the  policies  which  nations  pursue  among  themselves.  No  maxi- 
mum of  instruction  is  stated,  as  that  must  necessarily  depend  upon  the 
universities  and  upon  the  students,  but  it  is  clear  from  the  recom- 
mendations already  cited,  and  to  be  referred  to  later,  that  the  Congress 
fully  appreciated  the  importance  of  careful  and  thorough  training  in 
the  principles  of  international  law  and  of  an  adequate  understanding 
of  the  workings  of  diplomacy,  both  by  the  public  generally  and  es- 
pecially by  those  whose  good  fortune  it  may  be  to  create  and  to  guide 
public  opinion. 

The  Congress  recognized  the  fact,  familiar  to  all  who  have  had  to 
do  with  the  class  room,  that  students  like  to  hear  those  who  have  had 
experience  in  international  law  discourse  upon  its  principles  and  its 
application.  The  professor  without  experience  in  the  actual  conduct 
of  affairs  may  be  more  deeply  versed  in  what  is  called  book  learning 
than  the  international  lawyer  or  the  professional  diplomatist,  and  yet 
the  latter  create  an  interest  and  an  enthusiasm  by  virtue  of  their  ex- 
perience and  the  confidence  which  they  create  beyond  the  reach  of  the 
academician.  The  Congress  therefore  recommended  that  international 
lawyers,  termed  experts  in  international  law,  and  that  preferred  diplo- 
mats to  be  invited  from  time  to  time  to  lecture  upon  the  subject  at  the 
several  institutions. 

Article  25  [Resolution  No.  4] 

The  Second  Pan  American  Scientific  Congress,  in  order  to 
place  instruction  in  international  law  upon  a  more  uniform  and 
scientific  basis,  recommends  that: 


30  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

(a)  In  the  teaching  of  international  law  emphasis  be  laid  upon 
the  positive  nature  of  the  subject  and  the  definiteness  of  the  rules, 
for  whether  the  teaching  of  international  law  be  regarded  as  of 
value  as  a  disciplinary  subject  or  from  the  standpoint  of  its  im- 
portance in  giving  to  the  student  a  grasp  of  the  rules  that  govern 
the  relations  of  nations,  it  is  equally  important  that  he  have  im- 
pressed upon  his  mind  the  definiteness  and  positive  character  of 
the  rules  of  international  law;  that  the  teaching  of  international 
law  be  not  made  the  occasion  for  a  universal  peace  propaganda; 
that  the  interests  of  the  students  in  and  their  enthusiasm  for  the 
subject  can  best  be  aroused  by  impressing  upon  them  the  evolu- 
tionary character  of  the  rules  of  international  law,  for  through 
such  a  presentation  of  the  subject  the  student  will  not  fail  to  see 
that  the  development  of  positive  rules  of  law  governing  the  rela- 
tions of  states  has  contributed  toward  the  mmntenance  of  peace. 

(b)  In  order  to  emphasise  the  positive  character  of  interna- 
tional law  the  widest  possible  use  be  made  of  cases  and  the  con- 
crete facts  of  international  experience,  for  the  interest  of  students 
can  best  be  aroused  when  they  are  convinced  that  they  are  deal- 
ing with  such  concrete  facts,  and  that  the  marshaling  of  such  facts 
in  such  a  way  as  to  develop  or  illustrate  general  principles  lends 
dignity  to  the  subject,  which  can  not  help  but  have  a  stimulating 

'  in-kuence;  that  international  law  should  be  constantly  illustrated 
from  the  sources  recognized  as  ultimate  authority,  such  as  cases 
both  of  judicial  and  arbitral  determination;  treaties,  protocols, 
acts,  and  declarations  of  epoch-making  congresses,  such  as  West- 
phalia (1648),  Vienna  {18 15),  Paris  {1856),  The  Hague  (18^ 
and  ipoy),  and  London  (iqoq)  ;  diplomatic  incidents  ranking  as 
precedents  for  action  of  an  international  character;  and  the  great 
classics  of  international  law. 

(c)  In  the  teaching  of  international  law  care  be  exercised  to 
distinguish  the  accepted  rules  of  international  law  from  questions 
of  international  policy. 

(d)  In  a  general  course  on  international  law  the  experience  of 
no  one  country  be  allowed  to  assume  a  consequence  out  of  pro- 
portion to  the  strictly  international  principles  it  may  illustrate. 

Just  as  Article  24  urged  an  increase  of  the  instruction  in  interna- 
tional law  and  diplomacy,  so  Article  25  urges  that  the  instruction  itself 
be  more  thorough,  be  more  detailed,  and  be  more  efficient  than  here- 
tofore. 

Section  (a)  recommends  that  the  positive  nature  of  international 
law  and  the  definiteness  of  its  rules  be  emphasized — and  wisely,  be- 
cause if  international  law  is  not  law  but  a  system  of  morality,  of 
ethics,  of  philosophy  or  of  history,  it  has  no  place  in  positive  juris- 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      31 

prudence,  and  it  can  make  no  claim  to  a  standard  of  conduct  by  which 
the  rights  and  duties  of  nations  are  to  be  measured.  If  the  definiteness 
of  the  rule  be  not  impressed  upon  the  student,  he  is  left  with  the  erro- 
neous conception  that  international  law  is  a  loose  and  disjointed  sys- 
tem, if  system  it  is  to  be  called,  instead  of  a  system  of  law  whose  rules 
are  definite  as  far  as  they  go,  and  whose  imperfections  are  due  to  the 
fact  that  it  is  a  growing  not  a  completed  system  as  is  the  case  with 
municipal  law. 

In  stating  that  the  teaching  of  international  law  should  not  be  made 
the  occasion  for  a  universal  peace  propaganda,  the  Congress  meant 
to  convey  the  idea  that  through  the  appHcation  of  the  principles  of 
justice  to  the  relations  of  nations,  peace  necessarily  results,  just  as 
the  peace  of  the  community  depends  upon  the  existence  of  principles 
of  justice  and  their  application  to  the  disputes  that  arise  among  the 
people  composing  the  community.  International  law  should,  in  the 
opinion  of  the  Congress,  be  taught  as  a  system  of  jurisprudence,  as 
a  means  of  realizing  justice,  and  not  perverted  to  the  advocacy  of 
peace  as  such,  although  the  highway  to  peace  does  undoubtedly  run 
through  justice. 

That  the  Congress  had  in  mind  the  services  which  international  law 
could  render  to  the  cause  of  peace  is  seen  in  the  recommendation  that 
the  evolutionary  character  of  the  rules  of  international  law  should  be 
impressed  upon  the  student,  showing  how,  with  the  development  of 
rules  of  law,  order  and  equilibrium  have  resulted.  The  Congress,  how- 
ever, felt  that  the  influence  of  rules  of  law,  governing  the  relations 
of  equal  but  interdependent  nations,  would  best  be  seen  by  a  study  of 
the  development  of  the  rules  and  their  consequences ;  and  it  therefore 
stated  that  such  a  presentation  was  best  calculated  to  show  how  "the 
development  of  positive  rules  of  law  governing  the  relations  between 
states  has  contributed  toward  the  maintenance  of  peace."  In  a  word, 
the  study  of  international  law  should  be  scientific,  it  should  not  be 
propagandistic. 

The  Congress  was  exceedingly  anxious  that  international  law  should 
not  be  studied  as  an  abstract  system  of  rights  and  duties,  but  that  it 
should  take  note  of  the  concrete  facts  of  international  experience.  It 
therefore  recommended  in  Section  (b)  that  the  widest  possible  use 
be  made  of  actual  cases  and  incidents,  in  order  that  the  positive  charac- 
ter of  international  law  be  demonstrated,  and  that  it  be  held  up  as  the 
measure  of  international  right  and  of  international  duty.     It  appre- 


32  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

ciated  that  the  enthusiasm  of  the  students  should  be  aroused  and  that 
their  interest  could  best  be  sustained  if  they  dealt  with  actual  not  with 
hypothetical  cases,  and  if  they  saw  that  they  were  dealing  with  a  prac- 
tical not  with  a  theoretical  science.  It  was  felt  that  such  a  point  of  ap~ 
proach  was  calculated  to  lend  dignity  to  the  subject  and  to  stimulate 
and  to  maintain  the  interest  of  the  student. 

The  Congress,  advocating  the  concrete,  dealt  in  the  concrete,  and 
specified  the  sources  which  should  be  used  in  order  to  create  and  to 
stimulate  interest,  and  which  it  ventured  to  call  the  ultimate  sources  of 
authority.  In  the  first  place,  it  called  attention  to  the  judgments  of 
courts  and  to  sentences  of  arbitral  tribunals,  and  although  judgments 
of  courts  and  arbitral  awards  are  not  usually  given  the  first  place 
among  the  sources  of  international  law,  it  is  believed  that  the  Congress 
was  right  in  assigning  them  this  unusual  rank,  because  the  judgment 
of  a  court  is  decided  by  professional  judges  without  interest  in  the 
subject  in  dispute  and  according  to  principles  of  law  which  have 
stood  the  test  of  time;  and  in  the  same  way,  although  perhaps  in  a 
lesser  degree,  the  award  of  arbitral  tribunals  and  of  mixed  commissions 
are  the  holdings  of  persons  of  different  countries,  and  the  decision  is 
reached  at  least  by  a  majority  of  disinterested  persons,  bringing  to  the 
performance  of  their  task  an  international  outlook.  The  same  can 
not  be  said  of  diplomatic  incidents,  which  figure  so  prominently  among 
the  sources  and  which  are  often  the  concessions  of  the  weak  to  the 
strong,  rather  than  the  passionless  application  of  principles  of  justice. 
They  can  not,  however,  be  ignored,  for,  right  or  wrong,  they  are  mile- 
stones in  the  evolution  of  international  law. 

In  the  next  place,  treaties,  protocols,  acts  and  declarations  of  epoch- 
making  congresses  are  recommended  as  a  source  of  authority  and  as  a 
means  of  illustration.  Naturally  the  congresses  mentioned  are  those 
of  Westphalia,  Vienna  and  Paris,  and  it  is  especially  encouraging  to 
observe  that  a  Congress  composed  of  American  delegates  ventured 
to  proclaim  the  Hague  Conferences  as  sources  of  international  law  and 
to  confess  their  faith  in  them  at  a  time  when  many  partisans  of  inter- 
national organization  are  discouraged  at  the  present  and  despondent 
of  the  future. 

Finally,  the  classics  of  international  law  are  recommended,  for  the 
great  writers  on  international  law  have  not  only  expounded  the  law  of 
nations  but  they  have  also  made  and  enlarged  the  law  which  they  pro- 
fessed to  expound.    By  a  study  of  their  masterly  productions,  begin- 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      33 

ning  with  the  philosophers  and  canonists  of  the  Middle  Ages,  including 
Francisco  Victoria,  Ayala,  Gentilis,  and  Suarez,  the  predecessors  of 
Grotius,  the  immortal  three  books  on  the  right  of  war  and  peace  by 
the  illustrous  Grotius  himself,  and  the  works  of  his  successors,  we  see 
how  the  little  stream,  fed  by  many  sources,  has  grown  into  a  mighty 
torrent,  colored  it  may  be  by  the  soil  over  which  it  flows  but  reaching 
with  irresistible  force  the  ocean. 

The  Supreme  Court  of  the  United  States,  declared  in  the  case  of  the 
Paquete  Habana  (176  U.  S.,  677),  decided  in  1899,  that  "interna- 
tional law  is  part  of  our  law,  and  must  be  ascertained  and  administered 
by  the  courts  of  justice  of  appropriate  jurisdiction,  as  often  as  ques- 
tions of  right  depending  upon  it  are  duly  presented  for  their  determi- 
nation." The  opinion,  delivered  by  a  very  learned  judge,  the  late 
Mr.  Justice  Gray,  then  proceeded  to  enumerate  the  sources  of  authority 
as  follows: 

For  this  purpose,  where  there  is  no  treaty,  and  no  controlling 
executive  or  legislative  act  or  judicial  decision,  resort  must  be 
had  to  the  customs  and  usages  of  civilized  nations;  and,  as  evi- 
dence of  these,  to  the  works  of  jurists  and  commentators,  who 
by  years  of  labor,  research  and  experience,  have  made  themselves 
peculiarly  well  acquainted  with  the  subjects  of  which  they  treat. 
Such  works  are  resorted  to  by  judicial  tribunals,  not  for  the 
speculations  of  their  authors  concerning  what  the  law  ought  to 
be,  but  for  trustworthy  evidence  of  what  the  law  really  is. 

Supplementing  the  enumeration  of  sources  of  authority  which  the 
Congress  ventured  to  make  by  the  decision  of  the  learned  justice  of  the 
Supreme  Court  in  deciding  the  case  of  the  Paquete  Habana  we  have 
a  firm  and  a  sure  measure  of  international  right  and  of  international 
duty,  and  of  the  means  of  ascertaining  it  in  almost  any  case. 

The  Congress,  it  will  be  recalled,  recommended  that  particular  stress 
should  be  laid  upon  the  positive  nature  of  international  law  and  the 
definiteness  of  its  rules.  This  recommendation  appears  in  a  slightly 
different  form  in  Section  (c),  where  the  Congress  advises  that  the 
lines  be  clearly  drawn  between  the  accepted  rules  of  international  law 
on  the  one  hand  and  questions  of  international  policy  on  the  other 
hand. 

It  is  not  difficult  to  illustrate  what  the  Congress  had  in  mind  in  this 
recommendation,  and  it  is  perhaps  neither  necessary  to  cite  an  illustra- 
tration  nor  to  enlarge  upon  the  importance  of  the  recommendation. 


34  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

The  distinction  is  between  law  and  policy,  a  distinction  which  citizens 
of  a  particular  country  are  apt  to  forget  in  their  eagerness  to  justify 
the  contentions  put  forward  by  their  country  on  any  and  every  occa- 
sion. The  test  of  law  is  not  policy,  rather  the  test  of  policy  is  law. 
Much  is  lost  by  their  confusion;  everything  is  gained  by  separating 
them  and,  when  separating  them,  by  discussing  them  in  their  various 
elements  and  in  all  their  bearings. 

And  finally,  in  dealing  with  this  phase  of  instruction,  the  Congress 
advised  that  the  experience  of  no  one  country  should  be  dwelt  upon 
to  the  exclusion  of  the  experience  of  other  countries.  For  if  interna- 
tional law  be  in  reality  the  law  of  nations  it  is  universal  and  it  should 
be  studied  in  its  universal  applications,  although  it  may  often  be  most 
entertainingly  if  not  best  illustrated  by  examples  taken  from  the  ex- 
perience of  the  home  country.  In  so  doing,  however,  great  care  should 
be  exercised,  in  the  present  unsatisfactory  state  of  affairs,  because, 
while  international  law  is  universal,  it  is  interpreted  by  each  nation  and 
is  not  infrequently  perverted  in  the  process.  In  any  event,  the  prece- 
dents of  no  one  country  should  be  studied  to  the  exclusion  of  prece- 
dents from  other  countries ;  otherwise  a  belief  is  likely  to  grow  up  in 
the  mind  of  the  student  that  his  country  is  the  favorite  home  of  inter- 
national law  and  the  international  is  likely  to  yield  to  the  national 
aspect. 

Article  26  [Resolution  No.  5] 

The  Second  Pan  American  Scientific  Congress,  in  order  still 
further  to  advance  the  cause  of  international  law  and  the  develop- 
ment of  international  justice,  recommends  that  a  major  in  inter- 
national law  in  a  university  course,  leading  to  the  degree  of  doctor 
of  philosophy,  he  followed  if  possible  by  residence  at  The  Hague 
in  attendance  upon  the  Academy  of  International  Law,  installed 
in  1(^14  in  the  Peace  Palace  in  that  city;  and  that,  as  no  better 
means  has  been  devised  for  affording  a  just  appreciation  of  the 
diverse  and  conHicting  national  views  concerning  international  law 
or  for  developing  that  "international  mind"  which  is  so  essential 
in  a  teacher  of  that  subject,  as  many  fellowships  as  possible  should 
be  established  in  the  Academy  at  The  Hague  and  put  at  the  dis- 
position of  advanced  students  of  international  law  in  the  different 
American  republics. 

In  addition  to  courses  of  international  law  in  national  institutions 
the  Congress  recommends  the  advantage  of  studying  international  law 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      35 

in  what  may  be  called  an  international  institution,  in  order  that  the 
conception  of  international  law  may,  as  it  were,  be  internationalized. 
A  distinguished  teacher  of  the  law  of  nations  has  said: 

It  is  to  be  deplored  that  many  writers  on  the  law  of  war  and 
neutrality  should  take  every  opportunity  of  displaying  their  politi- 
cal sympathies  and  antipathies,  and  should  confound  their  own 
ideas  of  justice,  humanity,  and  morality  with  the  universally  recog- 
nized rules  of  warfare  and  neutrality.  French  books  often  contain 
denunciation  of  the  Germans  and  the  English;  English  books — 
Hall's  classical  treatise  furnishes  at  once  an  illustration  and  a 
warning — frequently  condemn  the  Germans  and  the  Russians; 
and  the  Germans  on  many  occasions  retaliate  by  reproaching  the 
French  and  the  English.^ 

This  tendency  to  defend  the  policy  of  one's  own  country  is  the  more 
insidious  because  it  is  often  unconscious,  and  the  best  way,  it  is  be- 
lieved, to  overcome  this  tendency  seems  to  be  to  come  into  contact 
with  teachers  of  reputation  of  different  countries  in  some  international 
institution,  where  the  bias  of  one,  if  it  exist,  may  be  offset  by  the  views 
of  another  teacher  of  equal  repute  and  of  a  different  nationality. 

On  the  12th  day  of  January,  1914,  the  Academy  of  International 
Law  was  founded  at  The  Hague,  and  arrangements  had  been  made  for 
its  formal  opening  on  the  1st  day  of  October,  1914.  It  was  not  opened 
on  that  date,  for  reasons  which  need  not  be  mentioned  in  this  connec- 
tion. It  should  be  said,  however,  that  arrangements  had  already  been 
made  for  courses  of  instruction  by  distinguished  teachers  and  pro- 
fessors of  international  law  drawn  from  different  countries,  as  it  is  a 
fundamental  rule  of  the  Academy  that  no  two  instructors  should  be 
chosen  during  one  and  the  same  period  from  the  same  country.  The 
student  body  was  to  be  drawn  from  advanced  students  of  different 
foreign  countries,  and  it  was  believed  by  the  most  distinguished  pub- 
licists that,  by  the  presence  of  professors  selected  from  different  coun- 
tries and  by  the  intercourse  of  students,  likewise  coming  from  differ- 
ent countries,  the  horizon  of  the  professors  would  be  broadened  and 
their  views,  as  well  as  the  views  of  the  students,  internationalized. 
The  great  experiment  remains  to  be  tried,  as  the  Academy  is  to  be 
opened  in  the  Peace  Palace  at  The  Hague  at  no  distant  date,  and  the 
students  will,  it  is  to  be  hoped,  press  in  increasing  numbers  to  this- 
Mecca  of  internationalism. 


lOppenheim,  International  Law,  1st  ed.,  vol.  ii,  p.  vii. 


36  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

Arrangements  were  in  contemplation  and  indeed  well  under  way  to 
establish  one  or  more  fellowships  in  all  countries  parties  to  the  Hague 
Conventions,  so  that  young  men  planning  to  engage  in  the  practice  of 
international  law  or  to  devote  themselves  to  diplomacy  might  perfect 
their  studies  at  this  international  center.  For  the  time  being  the 
process  is  delayed  and  the  doors  of  the  Academy  are  closed,  but  it  is 
not  too  much  to  hope  that  they  will  swing  open  on  a  happier  morrow, 
and  that  in  the  Peace  Palace  at  The  Hague,  where  justice  is  admin- 
istered by  the  Permanent  Court  of  Arbitration  between  nation  and 
nation,  the  principles  of  international  law  will  be  taught  by  accredited 
teachers  thereof  drawn  from  the  various  countries  of  the  world  to 
a  student  body,  likewise  coming  from  afar. 

Article  2y  [Resolution  No.  6] 

The  Second  Pan  American  Scientific  Congress  expresses  the 
opinion  that  the  present  development  of  higher  education  in  the 
American  republics  and  the  place  which  they  have  now  assumed  in 
the  affairs  of  the  society  of  nations  justify  and  demand  that  the 
study  of  the  science  and  historic  applications  of  international  law 
be  treated  on  a  plane  of  equality  with  other  subjects  in  the  cur- 
riculum of  colleges  and  universities,  and  that  professorships  or 
departments  devoted  to  its  study  be  established  where  they  do  not 
exist  in  every  institution  of  higher  learning. 

The  Congress  calls  attention  to  the  development  of  the  higher  edu- 
cation in  the  American  republics  and  to  the  place  which  these  repub- 
lics assume  in  the  affairs  of  the  society  of  nations.  It  squarely  states 
its  measured  judgment  that  international  law  is  a  science;  that  in  its 
historic  applications  it  should  stand  upon  a  plane  of  equality  with  other 
studies  in  the  curriculum  of  American  institutions  of  learning,  and 
that  professorships  or  departments  devoted  to  the  study  of  interna- 
tional law  of  international  relations  should  be  created  in  every  higher 
institution  of  learning  in  the  American  continent  where  they  do  not 
already  exist. 

It  has  long  been  the  habit  of  a  certain  type  of  mind  to  question  the 
existence  of  such  a  thing  as  international  law.  This  type  of  mind, 
however,  does  not  appear  to  have  been  represented  in  the  Congress, 
and  it  is  authoritatively  stated  in  this  article  by  accredited  representa- 
tives of  the  governments  of  the  American  republics  that  international 
law  does  in  fact  exist  and  that  it  should  regulate  their  mutual  inter- 
course;   and    in    the   passage    previously    quoted    from    the   Paquete 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      37 

Hahana,  the  Supreme  Court  of  the  United  States  solemnly  declared 
international  law  to  be  a  part  of  the  law  of  the  United  States  and 
that  it  should  be  applied  in  the  decision  of  cases  properly  involving  it. 
The  judges  of  this  august  tribunal  are  not  ordinarily  regarded  as 
idealists  but  as  men  of  affairs  and  leaders  of  the  bar  who  have  achieved 
distinction  in  their  chosen  profession. 

For  the  western  continent  the  law  of  nations  therefore  exists.  As 
democracy  comes  to  its  own  the  knowledge  of  international  law  be- 
comes more  essential.  The  participation  of  the  American  republics 
in  the  Hague  Conference  is  assured,  and  to  render  their  influence 
effective  their  delegates  must  be  versed  in  the  principles  of  international 
law.  The  future  leaders  of  opinion,  here  or  elsewhere,  should  have 
opportunities  in  their  university  days  of  perfecting  themselves  in  the 
knowledge  of  international  law  and  of  international  relations  which 
are  based  upon  the  law  of  nations,  and  international  law  should  not  be 
lowered  in  the  opinion  of  the  student  by  being  placed  upon  a  lower 
plane  than  any  other  branches  of  law  or  of  political  science.  Profes- 
sorships of  international  law  should  exist  in  every  institution  of  higher 
learning  in  the  American  continent,  and  departments  thereof  should,  in 
the  opinion  of  the  Congress,  be  created  in  every  such  institution. 

Article  28  [Resolution  No.  p] 

The  Second  Pan  American  Scientific  Congress,  recognizing  the 
grozmng  importance  of  a  knowledge  of  international  law  to  all 
persons  who  intend  to  devote  them^selves  to  the  administration  of 
justice,  and  who,  through  their  professional  occupation,  may  con- 
tribute largely  to  the  formation  of  public  opinion  and  who  may 
often  be  vested  with  the  highest  offices  in  the  state  and  nation, 
earnestly  requests  all  law  schools  which  now  offer  no  instruction 
in  international  law  to  add  to  their  curriculum  a  thorough  course 
in  that  subject. 

Article  28  specifically  considers  the  advisability  of  offering  courses 
on  international  law  in  the  law  schools  of  the  American  countries  and 
the  necessity  of  having  lawyers  thoroughly  grounded  in  the  principles 
of  international  law.  Given  the  fact  that  lawyers  are  members  of  the 
congresses  of  the  different  American  countries,  that  they  are  very 
often  members  of  the  cabinets  and  presidents  of  the  American  repub- 
lics ;  that  in  their  various  public  offices  they  are  called  upon  to  interpret 
the  principles  of  international  law,  and  in  many  instances  to  apply  them 
as  interpreted  to  the  foreign  relations  of  their  country,  it  needs  no 


38  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

argument  that  persons  entering  congress  and  the  higher  service  of 
the  governments  require  a  knov^ledge  of  international  law  to  enable 
them  to  perform  successfully  or  even  acceptably  the  duties  of  their 
offices.  All  members  of  the  diplomatic  service  must  needs  be  trained 
in  international  law  and  in  a  lesser,  but  nevertheless  to  a  marked  degree, 
journalists,  whose  business  it  is  to  guide  and  to  mould  public  opinion, 
should  be  trained  in  the  law  of  nations. 

As  the  result  of  an  elaborate  investigation  it  has  been  ascertained 
that  international  law  is  not  taught  universally  in  law  schools,  and 
indeed  that  it  is  omitted  from  the  courses  of  many  of  them.  The  Con- 
gress therefore  supplements  its  general  recommendations  as  to  the 
value  and  advisability  of  an  adequate  knowledge  of  international  law 
by  earnestly  recommending  that  courses  of  international  law  be  offered 
in  law  schools  which  at  present  do  not  have  thorough  courses  in  that 
subject. 

Article  2p  [ResoliUion  No.  12] 

The  Second  Pan  American  Scientific  Congress  regards  it  as 
highly  desirable,  upon  the  initiative  of  institutions  where  instruc- 
tion in  international  law  is  lacking,  to  take  steps  toward  providing 
such  instruction  by  visiting  professors  or  lecturers,  this  instruc- 
tion to  be  given  in  courses,  and  not  in  single  lectures,  upon  sub- 
stantive principles,  not  upon  popular  questions  of  momentary 
interest,  and  in  a  scientific  spirit,  not  in  the  interest  of  any  propo- 
ganda. 

It  is  of  course  one  thing  to  know  the  defect  and  another  to  provide 
the  adequate  remedy.  In  previous  recommendations  the  Congress 
has  urged  that  international  law  be  taught  in  the  universities  of  the 
Americas,  and  more  especially  in  the  law  schools  thereof,  that  interna- 
tional law  be  placed  upon  a  plane  of  equality  with  other  branches  of 
law  and  of  political  science  and  that  special  departments  be  created  for 
its  teaching  and  study. 

But  it  may  be  difficult  or  embarrassing  to  provide  courses  of  instruc- 
tion in  the  way  previously  recommended.  Therefore  the  Congress, 
looking  through  the  form  to  the  substance,  recommended  it  as  par- 
ticularly desirable  that  instruction  should  be  given  in  international  law 
by  visiting  professors  or  lecturers,  when  for  one  reason  or  another  it 
should  be  found  inconvenient  or  impossible  to  establish  professorships 
and  departments  of  international  law.  The  Congress,  however,  recog- 
nizes the  fact,  patent  to  all  persons  interested  in  education,  that  single 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      39 

lectures  on  isolated  subjects  upon  matters  of  momentary  interest  are 
not  calculated  to  impart  a  knowledge  of  or  to  create  an  interest  in  the 
law  of  nations.  Therefore,  the  Congress  urges  that  courses  of  lec- 
tures, instead  of  single  lectures,  be  given  and  that  these  courses  be  de- 
voted to  the  exposition  of  substantive  principles  of  international  law, 
not  to  the  elucidation,  however  interesting,  of  popular  questions  of 
passing  interest.  Above  and  beyond  all,  the  Congress  urges  that  the 
courses  of  instruction  be  permeated  with  the  scientific  spirit  and  not 
conceived  in  the  interest  of  any  propaganda,  which,  it  is  feared,  )vould 
be  detrimental  to  a  scientific  method  and  would  fail  of  its  purpose  to 
incline  the  minds  and  the  hearts  of  the  students  to  the  propaganda  even 
if  it  were  attempted  so  to  do. 

Article  50  [Resolution  No.  14] 

The  Second  Pan  American  Scientific  Congress  recommends 
the  establishment  and  encouragement  in  institutions  of  specialised 
courses  in  preparation  for  the  diplomatic  and  consular  services. 

The  need  of  international  law  for  the  diplomatic  service  has  already 
been  mentioned,  although  briefly  and  in  passing,  but  the  Congress  felt 
that  this  subject  was  one  of  such  grave  importance  that  it  should  not 
be  passed  over  in  silence.  Therefore,  Article  30  deals  with  prepara- 
tion for  the  diplomatic  and  consular  services  and  urges  the  establish- 
ment and  encouragement  of  specialized  courses  to  render  the  services 
more  valuable,  both  to  those  who  make  of  them  a  career  and  to  the 
countries  to  which  they  belong. 

The  place  which  international  law  occupies  in  the  outfit  of  a  diplo- 
mat and  in  the  daily  duties  of  a  consul  is  evident  upon  the  merest 
consideration  of  their  functions,  so  evident  indeed  as  not  to  require 
special  mention.  And  yet,  in  view  of  the  fact  that  international  law 
is  largely  a  thing  of  usage  and  custom,  that  diplomatic  incidents  have 
entered  into  and  form  such  a  large  part  of  the  system,  and  that  the 
question  of  peace  and  of  war  has  so  often  depended  upon  the  mastery 
of  international  law  by  diplomats  and  ministers  of  foreign  affairs,  it 
seems  necessary  to  enlarge  upon  the  importance  of  the  subject,  even 
although  it  be  unnecessary  to  enter  into  details.  And  what  has  been 
said  of  the  diplomatic  applies  in  no  less  a  degree  to  the  consular 
service;  for  as  the  diplomatist  deals  largely  with  what  may  be  called 
political  questions  pending  between  the  different  countries,  the  consul 


40  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

handles  the  great  commercial  questions  which  so  intimately  concern 
the  prosperity  of  nations. 

The  Congress  did  not  feel  justified  in  recommending  that  training 
in  international  law  should  be  a  prerequisite  to  admission  to  the  diplo- 
matic and  consular  services,  because  this  is  a  political  question  and 
one  which  each  country  must  necessarily  determine  for  itself.  In 
recommending,  however,  specialized  courses  in  preparation  for  the 
services  in  question,  it  expressed  in  no  uncertain  terms  the  advisability 
of  a  thorough  knowledge  of  international  law  for  any  and  all  persons 
in  the  Americas  who  might  think  of  making  of  the  diplomatic  or  con- 
sular service  a  career. 

Article  31  [Resolution  No.  15] 

The  Second  Pan  American  Scientific  Congress  advises  that  the 
study  of  international  law  be  required  in  specialized  courses  in 
preparation  for  business. 

Perhaps  the  Congress  stated  most  unequivocally  its  appreciation 
and  conviction  of  the  advantages  of  a  training  in  international  law  in 
the  present  paragraph,  which  is  the  shortest  of  the  articles  dealing 
with  this  topic,  and  which,  looking  away  from  the  special  uses  which 
might  be  made  of  international  law,  declares  that  "the  study  of  in- 
ternational law  be  required  in  specialized  courses  in  preparation  for 
business." 

Article  32 

The  Second  Pan  American  Scientific  Congress  urges  that  in  the 
study  and  teaching  of  international  law  in  American  institutions 
of  learning  special  stress  be  laid  upon  problems  affecting  the 
American  republics  and  upon  doctrines  of  American  origin. 

Heretofore  the  desirability  of  a  training  in  international  law  has 
been  stated  in  general  and  with  reference  to  particular  callings  in  terms 
applicable  alike  to  Europe  and  Asia  as  well  as  to  the  Americas,  but  in 
Article  32  the  Congress  recognizes,  without  attempting  to  enter  into 
detail  or  to  specify  them,  that  there  are  problems  affecting  the  Ameri- 
can republics  which  do  not  of  necessity  affect  other  countries,  or 
which  do  not  affect  them  in  the  same  way  or  to  the  same  extent.  At 
the  same  time  it  recognizes,  without  stating  or  defining  them,  that 
there  are  what  may  be  called  doctrines  of  American  origin. 

Regarding  these  problems  and  these  doctrines  the  Congress  makes 
a  very  simple,  a  very  specific  and  a  very  wise  recommendation,  namely, 
that,  by  reason  of  the  effect  which  these  problems  have  upon  American 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      41 

countries  and  by  reason  of  the  American  origin  of  certain  doctrines, 
special  stress  should  be  laid  upon  them  in  all  courses  of  international 
law  offered  in  American  institutions. 

The  recommendation  of  the  Congress  accords  with  the  views  of 
American  publicists  as  expressed  in  the  Constitution  of  the  American 
Institute  of  International  Law,  which  is  the  object  of  the  next  article, 
and  in  the  constitutions  of  the  societies  of  international  law  which 
happily  exist  in  every  American  republic.  A  single  example  will  suf- 
fice. Thus,  Article  2  of  the  Constitution  of  the  American  Institute  of 
International  Law  states  the  purpose  of  this  body  to  be  **to  study 
questions  of  international  law,  particularly  questions  of  an  American 
character,  and  to  endeavor  to  solve  them,  either  in  conformity  with 
generally  accepted  principles,  or  by  extending  and  developing  them, 
or  by  creating  new  principles  adapted  to  the  special  needs  of  the  Amer- 
ican continent." 

This  article  has  the  advantage  of  stating  the  point  of  approach  to 
American  problems  and  questions  and  proposes  a  method  of  solving 
them. 

Article  33 

The  Second  Pan  American  Scientific  Congress  extends  to  the 
American  Institute  of  International  Law  a  cordial  welcome  into 
the  circles  of  scientific  organisations  of  Pan  America,  and  records 
a  sincere  wi^h  for  its  successful  career  and  the  achievement  of 
the  highest  aim^  of  its  important  labors. 

The  welcome  extended  by  the  Congress  to  the  American  Institute  of 
International  Law  was  the  culmination  of  a  remarkable  series  of 
resolutions  adopted  by  legal,  political,  and  scientific  assemblies  offi- 
cially representing  all  of  the  American  republics,  because,  as  will  be 
seen,  the  Pan  American  Union  tendered  a  vote  of  commendation  and 
encouragement  shortly  before  the  meeting  of  the  Congress  to  the 
founders  and  members  of  the  Institute,  and  the  Commission  of  Ameri- 
can Jurists,  assembled  at  Rio  de  Janeiro  to  consider  the  codification 
of  international  law,  adopted  on  July  16,  1912,  a  resolution,  "com- 
mending the  initiative  taken  to  found  an  American  Institute  of  Inter- 
national Law,  as  the  Committee  considers  an  institution  of  this  kind 
of  great  usefulness  to  assist  in  the  work  of  codification  that  the  states- 
men of  the  New  World  have  in  view." 

It  is  difficult  to  explain  the  origin  and  development  of  the  American 
Institute  of  International  Law  in  briefer  and  more  apt  terms  than 


42  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

those  employed  by  His  Excellency,  the  Chilean  Ambassador,  Sr.  Dr. 
Eduardo  Suarez  Mujica,  the  President  of  the  Congress,  who,  at  the 
meeting  of  the  Governing  Board  of  the  Pan  American  Union,  held  on 
December  1,  1915,  moved  a  resolution  of  encouragement  to  the  foun- 
ders of  the  Institute,  and  who,  in  the  remarks  upon  his  motion,  unani- 
mously carried  by  the  Governing  Board,  spoke  as  follows : 

As  my  colleagues  are  undoubtedly  aware,  in  October,  1912,  the 
foundations  were  laid  in  Washington  for  an  organization  of  a 
most  interesting  character.  Under  the  auspices  of  the  prominent 
internationalists  of  the  whole  world,  under  the  honorary  presi- 
dency and  the  wise  counsel  of  the  ex-Secretary  of  State  and  dis- 
tinguished North  American  statesman,  Mr.  Elihu  Root,  and 
through  the  unremitting  and  intelligent  effort  of  two  men  of 
action  and  scholars,  well  known  to  the  international  world,  Messrs. 
James  Brown  Scott  and  Alejandro  Alvarez,  there  was  bom  into 
the  realm  of  scientific  life  the  American  Institute  of  Interna- 
tional Law,  the  object  of  which  is,  briefly  stated,  to  combine  and 
utilize,  through  a  central  organization  in  Washington  and  the 
cooperation  of  affiliated  or  corresponding  associations  in  all  the 
other  American  nations,  the  intellectual  efforts  of  jurists  and 
thinkers  of  the  continent,  for  the  development  of  international 
law,  the  generalization  of  its  principles,  and  the  adoption  of  a 
common  standard  to  ensure  the  enforcement  of  law  and  justice 
among  the  countries  of  the  New  W^orld. 

The  corresponding  or  affiliated  associations  have  already  been 
organized  in  eighteen  out  of  the  twenty-one  American  republics, 
and  steps  are  being  taken  to  constitute  the  other  three. 

International  law  is  not  the  patrimony  of  a  single  nation.  It  is 
the  law  of  all  nations,  and  must  therefore  be  formed  and  assented 
to  by  all;  and  thus  the  cooperation  of  nations  is  essential  to  its 
enactment  or  amendment.  Hence  the  enormous  importance  of  an 
organization  having  a  brain  and  a  voice  in  every  one  of  the  nations 
of  America,  whose  action  must  be  the  fruit  of  continental  thought. 

Such  an  organization  embodies,  I  believe,  one  of  the  most 
powerful  auxiliaries  for  progress  and  civilization  in  the  Americas, 
and  for  the  permanent  maintenance  of  peace  from  one  end  to  the 
other  of  their  frontiers.  Such  an  organization  deserves,  without 
doubt,  the  good  will  of  the  peoples  and  governments  of  the  conti- 
nent, which  we  represent  here. 

During  the  month  commencing  to-day  the  Second  Pan  American 
Scientific  Congress  is  to  meet  in  Washington,  and  one  of  the 
most  important  events  that  are  to  take  place  during  its  sessions 
is  the  official,  solemn  inauguration,  under  the  auspices  of  the 
Congress,  of  the  American  Institute  of  International  Law.  I 
believe  this  is  a  fitting  occasion  on  which  to  offer  a  vote  of  com- 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      43 

mendation  and  encouragement  for  this  work  of  common  interest 
to  our  countries — a  vote  which  I  hope  will  be  accepted  by  all — 
and  therefore  I  have  the  honor  to  submit  for  the  approval  of  the 
board  the  following  resolution : 

Considering  that  the  official  inauguration  of  the  American  In- 
stitute of  International  Law,  founded  in  Washington  October  12, 
1912,  is  soon  to  take  place  under  the  auspices  of  the  Second  Pan 
American  Scientific  Congress;  and 

Considering  that  said  Institute,  consisting  of  representatives  of 
every  one  of  the  American  republics,  recommended  by  the  Inter- 
national Law  Associations  of  their  respective  countries,  will  result 
in  strengthening,  through  the  active  cooperation  of  jurists  and 
thinkers  of  the  whole  continent,  the  bonds  of  friendship  and  union 
now  existing  between  these  republics,  and  will  contribute  to  the 
development  of  a  common  sentiment  of  international  justice 
among  them,  the  Governing  Board  of  the  Pan  American  Union, 

Resolves,  To  tender  to  the  founders  and  members  of  the  Ameri- 
can Institute  of  International  Law  a  vote  of  commendation  and 
encouragement  for  the  foundation  of  said  organization,  which 
represents  a  step  of  the  highest  importance  in  the  moral  advance- 
ment of  the  continent  and  in  the  strengthening  of  the  sentiments 
of  friendship  and  harmony  among  the  republics. 

Since  the  date  of  His  Excellency's  address  and  motion,  which  was 
warmly  seconded  by  Honorable  Robert  Lansing,  Secretary  of  State 
of  the  United  States,  and  unanimously  carried,  societies  of  interna- 
tional law  have  been  formed  in  the  three  American  republics,  where 
they  were  then  lacking  so  that  on  the  opening:  of  the  Cong:ress  a 
national  society  of  international  law  existed  in  the  capital  of  every 
American  state.  The  Institute  is  composed  of  five  members  from  each 
of  the  twenty-one  national  societies,  recommended  by  the  societies  for 
membership  in  the  Institute. 

It  is  proper  to  say,  before  leaving  this  subject,  that  His  Excellency, 
the  President  of  the  Congress,  is  himself  a  member  of  the  Institute 
and  that  the  members  from  the  United  States  are:  Honorable  Robert 
Bacon,  formerly  Secretary  of  State  of  the  United  States  and  Ambassa- 
dor to  France;  Honorable  Robert  Lansing,  Secretary  of  State  of  the 
United  States ;  Honorable  Elihu  Root,  formerly  Secretary  of  State  of 
the  United  States  and  always  a  friend  of  the  Americas;  Dr.  Leo  S. 
Rowe,  Professor  of  Political  Science  in  the  University  of  Pennsyl- 
vania and  personally  known  and  appreciated  in  Latin  America  through 
his  repeated  visits  to  all  the  American  countries;  and  James  Brown 
Scott,  Esquire,  Secretary  of  the  Carnegie  Endowment  for  Interna- 


44  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

tional  Peace  and  Chairman  of  the  Joint  State  and  Navy  Neutrality 
Board  of  the  United  States. 

It  is  proper  also  to  add,  in  this  connection,  that  the  American  Insti- 
tute met  in  connection  with  and  under  the  auspices  of  the  Congress, 
that  it  was  formally  opened  on  December  29,  1915,  and  welcomed  by 
the  Honorable  Robert  Lansing,  on  behalf  of  the  Government  of  the 
United  States,  by  His  Excellency,  the  Chilean  Ambassador,  on  behalf 
of  the  Congress,  of  which  he  was  President,  and  by  the  Honorable 
Elihu  Root,  on  behalf  of  American  publicists.  It  completed  its  or- 
ganization by  admitting  the  five  members  from  each  national  society 
and  selected  the  following  officers:  Honorary  President,  Elihu  Root; 
President,  James  Brown  Scott;  Secretary  General,  Alejandro  Alvarez; 
Treasurer,  Luis  Anderson. 

On  the  3d  of  January,  1916,  the  Honorable  Robert  Lansing,  Secre- 
tary of  State  of  the  United  States,  addressed  a  letter  to  the  President 
of  the  Institute,  requesting  it  to  consider  the  matter  of  neutrality, 
from  which  very  important  letter  the  following  passage  is  quoted : 

I  would,  therefore,  suggest  that  a  committee  be  appointed  to 
study  the  problem  of  neutral  rights  and  neutral  duties  seeking 
to  formulate  in  terms  the  principle  underlying  the  relations  of 
belligerency  to  neutrality  rather  than  the  express  rules  governing 
the  conduct  of  a  nation  at  war  to  a  nation  at  peace. 

I  would  further  suggest  that  the  subject  might  be  advanta- 
geously divided  into  two  parts,  namely,  the  rights  of  neutrals  on 
the  high  seas,  and  the  duties  of  neutrals  dependent  upon  terri- 
torial jurisdiction. 

In  view  of  the  past  year  and  a  half  of  war  the  present  time 
seems  particularly  opportune  to  study  this  question  and  this  Insti- 
tute being  composed  of  members  from  neutral  nations  is  especially 
fitted  to  do  this  from  the  proper  point  of  view  and  with  the 
definite  purpose  of  protecting  the  liberty  of  neutrals  from  unjusti- 
fiable restrictions  on  the  high  seas  and  from  the  imposition  of 
needless  burdens  in  preserving  their  neutrality  on  land. 

Three  days  later  the  Institute  adopted  a  Declaration  of  the  Rights 
and  Duties  of  Nations,  based  upon  the  political  philosophy  of  the 
Declaration  of  Independence  of  the  United  States,  and  the  practice 
of  the  American  republics.  Inasmuch  as  the  Institute  was  formally 
welcomed  by  the  President  of  the  Congress,  held  its  sessions  in  con- 
nection with  and  under  the  auspices  of  the  Congress,  and  that  the 
members  of  the  Institute  were  likewise  delegates  to  the  Congress  and 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      45 

participated  in  its  labors,  it  is  advisable  to  include  the  text  of  the 
Declaration  accompanied  by  a  resume  of  the  elaborate  commentary 
which  explains  it.     The  text  of  the  Declaration  therefore  follows: 

Whereas,  the  municipal  law  of  civilized  nations  recognises 
and  protects  the  right  to  life,  the  right  to  liberty,  the  right  to 
the  pursuit  of  happiness,  as  added  by  the  Decla/ration  of  Inde- 
pendence of  the  United  States  of  America,  the  right  to  legal 
equality,  the  right  to  property,  and  the  right  to  the  enjoyment  of 
the  aforesaid  rights;  and 

Whereas,  these  fundamental  rights,  thus  universally  recognized, 
created  a  duty  on  the  part  of  the  peoples  of  all  nations  to  observe 
them;  and 

Whereas,  according  to  the  political  philosophy  of  the  Declara- 
tion of  Independence  of  the  United  States,  and  the  universal  prac- 
tice of  the  American  republics,  nations  or  governments  are  re- 
garded as  created  by  the  people,  deriving  their  just  powers  from 
the  consent  of  the  governed,  and  are  instituted  among  men  to 
promote  their  safety  and  happiness  and  to  secure  to  the  people 
the  enjoyment  of  their  fundam^ental  rights;  and 

Whereas,  the  rights  and  duties  of  nations  are,  by  virtue  of 
membership  in  the  society  of  nations,  exercised  and  performed 
conformably  to  the  requirements  of  the  solidarity  uniting  the 
members  of  the  society  of  civilised  nations,  recognised  by  the 
First  Hague  Peace  Conference  in  iSgg,  and  reaffirmed  by  the 
Second  Hague  Peace  Conference  in  i^oy;  and 

Whereas,  the  nation  is  a  moral  or  juristic  person,  the  creature 
of  law,  and  subordinated  to  law  as  is  the  natural  person  in  political 
society;  and 

Whereas,  we  deem  that  these  fundamental  rights  can  be  stated 
m  terms  of  internutional  law  and  applied  to  the  relations  of  the 
members  of  the  society  of  nations,  one  with  another,  just  as  they 
have  been  applied  in  the  relations  of  the  citisens  or  subjects  of 
the  states  forming  the  society  of  nations;  and 

Whereas,  these  fundamental  rights  of  national  jurisprudence, 
namely,  the  right  to  life,  the  right  to  liberty,  the  right  to  the  pur- 
suit of  happiness,  the  right  to  equality  before  the  law,  the  right 
to  property,  and  the  right  to  the  observance  thereof  are,  when 
stated  in  terms  of  international  law,  the  right  of  the  nation  to 
exist  and  to  protect  and  to  conserve  its  existence;  the  right  of 
independence  and  the  freedom  to  develop  itself  without  interfer- 
ence or  control  from  other  nations;  the  right  of  equality  in  law  and 
before  law;  the  right  to  territory  within  defined  boundaries  and 
to  exclusive  jurisdiction  therein;  and  the  right  to  the  observance 
of  these  fundamental  rights;  and 


46  RECOMMENDATIONS  ON   INTERNATIONAL  LAW 

Whereas,  the  rights  and  duties  of  nations  are,  by  virtue  of 
membership  in  the  society  thereof,  to  be  exercised  and  performed 
in  accordance  with  the  exigencies  of  their  mutual  interdependence 
expressed  in  the  preamble  of  the  Convention  for  the  pacific  settle- 
ment of  international  disputes  of  the  First  and  Second  Hague 
Peace  Conferences,  recog^iising  the  solidarity  which  unites  the 
members  of  the  society  of  civilized  nations; 

Therefore,  The  American  Institute  of  International  Law,  at 
its  first  session,  held  in  the  City  of  Washington,  in  the  United 
States  of  America,  on  the  sixth  day  of  January,  IQ16,  adopts  the 
following  six  articles,  together  with  the  commentary  thereon,  to  be 
known  as  its  Declaration  of  the  Rights  and  Duties  of  Nations: 

I.  Every  nation  has  the  right  to  exist,  and  to  protect  and  to 
conserve  its  existence;  but  this  right  neither  implies  the  right 
nor  justifies  the  act  of  the  state  to  protect  itself  or  to  conserve 
its  existence  by  the  commission  of  unlawful  acts  against  inno- 
cent and  unoffending  states. 

II.  Every  nation  has  the  right  to  independence  in  the  sense 
that  it  has  a  right  to  the  pursuit  of  happiness  and  is  free  to 
develop  itself  without  interference  or  control  from  other  states, 
provided  that  in  so  doing  it  does  not  interfere  with  or  violate 
the  rights  of  other  states. 

III.  Every  nation  is  in  law  and  before  law  the  equal  of  every 
other  nation  belonging  to  the  society  of  nations,  and  all  nations 
have  the  right  to  claim  and,  according  to  the  Declaration  of 
Independence  of  the  United  States,  "to  assume,  among  the 
powers  of  the  earth,  the  separate  and  equal  station  to  which 
the  laws  of  nature  and  of  nature*s  God  entitle  them." 

IV.  Every  nation  has  the  right  to  territory  within  defined 
boundaries,  and  to  exercise  exclusive  jurisdiction  over  its  terri- 
tory, and  all  persons  whether  native  or  foreign  found  therein. 

V.  Every  nation  entitled  to  a  right  by  the  law  of  nations  is 
entitled  to  have  that  right  respected  and  protected  by  all  other 
nations,  for  right  and  duty  are  correlative,  and  the  right  of  one 
is  the  duty  of  all  to  observe. 

VI.  International  law  is  at  one  and  the  same  time  both  national 
and  international;  national  in  the  sense  that  it  is  the  law  of 
the  land  and  applicable  as  such  to  the  decision  of  all  questions 
involving  its  principles ;  international  in  the  sense  that  it  is  the 
law  of  the  society  of  nations  and  applicable  as  such  to  all  ques- 
tions between  and  among  the  members  of  the  society  of  nations 
involving  its  principles. 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      47 

I.  Every  nation  has  the  right  to  exist,  and  to  protect  and  to 
conserve  its  existence;  but  this  right  neither  implies  the  right 
nor  justifies  the  act  of  the  state  to  protect  itself  or  to  conserve 
its  existence  by  the  commission  of  unlawful  acts  against  inno- 
cent and  unoffending  states. 

The  official  commentary  states  that  this  right  and  duty  is  to  be 
understood  as  interpreted  (a)  by  the  Chinese  Exclusion  Case  (reported 
in  130  United  States  Reports,  pp.  581,  606),  decided  by  the  Supreme 
Court  of  the  United  States  in  1888,  holding  that  to  preserve  its  inde- 
pendence and  give  security  against  foreign  aggression  and  encroach- 
ment is  the  highest  duty  of  every  nation,  and  to  attain  these  ends 
nearly  all  other  considerations  are  to  be  subordinated;  (b)  by  the  case 
of  Regina  v.  Dudley  (reported  in  15  Cox's  Criminal  Cases,  p.  624; 
14  Queen's  Bench  Division,  p.  273),  decided  by  the  Queen's  Bench 
Division  of  the  High  Court  of  Justice  in  1884,  to  the  effect  that  it  was 
unlawful  for  shipwrecked  sailors  to  take  the  life  of  one  of  their  num- 
ber, in  order  to  preserve  their  own  lives,  because  it  was  unlawful  ac- 
cording to  the  common  law  of  England  for  an  English  subject  to 
take  human  life,  unless  to  defend  himself  against  an  unlawful  attack 
of  the  assailant  threatening  the  life  of  the  party  unlawfully  attacked ; 
(c)  by  Bello  in  his  Principios  de  Derecho  de  Jentes,  pt.  1,  chap.  1,  §  7, 
edition  of  1832,  and  by  Calvo  in  his  Droit  International  Theorique  et 
Pratique,  5th  ed.,  vol.  i,  §  208. 

II.  Every  nation  has  the  right  to  independence  in  the  sense 
that,  it  has  a  right  to  the  pursuit  of  happiness  and  is  free  to. 
develop  itself  without  interference  or  control  from  other  states, 
provided  that  in  so  doing  it  does  not  interfere  with  or  violate 
the  rights  of  other  states. 

III.  Every  nation  is  in  law  and  before  law  the  equal  of  every 
other  nation  belonging  to  the  society  of  nations,  and  all  nations 
have  the  right  to  claim  and,  according  to  the  Declaration  of* 
Independence  of  the  United  States,  "to  assume,  among  the 
powers  of  the  earth,  the  separate  and  equal  station  to  which 
the  laws  of  nature  and  of  nature's  God  entitle  them." 

The  rights  and  duties  of  independence  and  of  equality  stated  in 
Articles  2  and  3  are,  according  to  the  official  commentary,  to  be  under- 
stood as  interpreted — 

(a)  By  Sir  William  Scott  in  the  case  of  The  Louis  (reported  in  2 
Dodson's  Reports,  pp.  210,  243-44),  decided  in  1817,  in  which  he  said: 


^^  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

"Two  principles  of  public  law  are  generally  recognized  as  fundamental. 
One  is  the  perfect  equality  and  entire  independence  of  all  distinct 
states." 

(b)  By  Chief  Justice  Marshall  in  the  case  of  The  Antelope  (reported 
in  10  Wheaton's  Reports,  pp.  66,  122),  decided  by  the  Supreme  Court 
of  the  United  States  in  1825,  who  said :  "No  principle  of  general  law 
is  more  universally  acknowledged,  than  the  perfect  equality  of  nations. 
Russia  and  Geneva  have  equal  rights.  It  results  from  this  equality, 
that  no  one  can  rightfully  impose  a  rule  on  another.  Each  legislates 
for  itself,  but  its  legislation  can  operate  on  itself  alone." 

(c)  By  Honorable  Elihu  Root,  in  his  address  before  the  Third  Pan 
American  Conference  held  at  Rio  de  Janeiro  on  July  31,  1906; 

(d)  By  Bello  in  his  Principios  de  Derecho  de  Jentes,  pt.  1,  chap.  1, 
§  7,  and 

(e)  By  Calvo  in  his  Droit  International  Theoriqtle  et  Pratique,  5th 
ed.,  vol.  i,  §  208. 

IV.  Every  nation  has  the  right  to  territory  within  defined 
boundaries,  and  to  exercise  exclusive  jurisdiction  over  its  terri- 
tory, and  all  persons  whether  native  or  foreign  found  therein. 

This  right  and  duty  are,  according  to  the  official  commentary,  to  be 
understood  in  the  sense  in  which  they  were  interpreted  by  Chief 
Justice  Marshall  in  the  case  of  the  schooner  Exchange  (reported  in 
7  Cranch's  Reports,  pp.  116,  136-7),  decided  by  the  Supreme  Court  of 
the  United  States  in  1812,  who  said: 

The  jurisdiction  of  the  nation,  within  its  own  territory,  is 
necessarily  exclusive  and  absolute;  it  is  susceptible  of  no  limita- 
tion, not  imposed  by  itself.     *     *     * 

A  nation  would  justly  be  considered  as  violating  its  faith,  al- 
though that  faith  might  not  be  expressly  plighted,  which  should 
suddenly  and  without  previous  notice,  exercise  its  territorial 
powers  in  a  manner  not  consonant  to  the  usages  and  received  obli- 
gations of  the  civilized  world. 

V.  Every  nation  entitled  to  a  right  by  the  law  of  nations  is 
entitled  to  have  that  right  respected  and  protected  by  all  other 
nations,  for  right  and  duty  are  correlative,  and  the  right  of  one 
is  the  duty  of  all  to  observe. 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      49 

This  right  is  to  be  understood  in  the  sense  in  which  it  was  stated 
and  defined  by  Chief  Justice  Waite  in  the  case  of  United  States  v, 
Arjona  (reported  in  120  United  States  Reports,  pp.  479,  487),  decided 
by  the  Supreme  Court  of  the  United  States  in  1886,  who  said: 

But  if  the  United  States  can  require  this  of  another,  that  other 
may  require  it  of  them,  because  international  obligations  are  of 
necessity  reciprocal  in  their  nature.  The  right,  if  it  exists  at  all, 
is  given  by  the  law  of  nations,  and  what  is  law  for  one  is,  under 
the  same  circumstances,  law  for  the  other.  A  right  secured  by  the 
law  of  nations  to  a  nation,  or  its  people,  is  one  the  United  States 
as  the  representatives  of  this  nation  are  bound  to  protect. 

VI.  International  law  is  at  one  and  the  same  time  both 
national  and  international;  national  in  the  sense  that  it  is  the 
law  of  the  land  and  applicable  as  such  to  the  decision  of  all 
questions  involving  its  principles;  international  in  the  sense 
that  it  is  the  law  of  the  society  of  nations  and  applicable  as  such 
to  all  questions  between  and  among  the  members  of  the  society 
of  nations  involving  its  principles. 

The  relation  of  international  to  national  law  is  to  be  understood  (1) 
in  the  sense  in  which  the  relationship  is  stated  by  Mr.  Justice  Gray  in 
the  case  of  the  Paquete  Hahana,  quoted  on  page  ZZ  under  Article  25 
of  this  report;  and  (2)  in  the  sense  of  the  official  commentary,  accord- 
ing to  which  international  law  is  to  be  regarded  as  a  part  of  the  law 
of  the  American  countries  and  is  to  be  applied  as  national  law  by  their 
courts,  and  to  be  also  applied  by  the  respective  republics  in  their  rela- 
tions one  with  another. 

The  spirit  which  should  animate  the  American  republics  is,  accord- 
ing to  the  official  commentary,  the  following  statement  by  Daniel 
Webster,  written  as  Secretary  of  State: 

Every  nation,  on  being  received,  at  her  own  request,  into  the 
circle  of  civilized  governments,  must  understand  that  she  not  only 
attains  rights  of  sovereignty  and  the  dignity  of  national  character, 
but  that  she  binds  herself  to  the  strict  and  faithful  observance  of 
all  those  principles,  laws,  and  usages  which  have  obtained  cur- 
rency among  civilized  states,  and  which  have  for  their  object  the 
mitigation  of  the  miseries  of  war. 

Before  adjournment  on  the  8th  day  of  January,  1916,  the  Institute 
was  invited  to  hold  its  next  session  in  Havana  as  the  guest  of  the 


50  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

Cuban  Government,  an  invitation  calculated  to  encourage  its  members 
to  be  worthy  of  the  invitation  which  was  so  graciously  and  so  unex- 
pectedly tendered  it. 

Article  S4 

The  Second  Pan  American  Scientific  Congress  recommends  to 
all  educational  establishments  of  America  the  special  study  of  the 
constitutions,  laws,  and  institutions  of  the  republics  of  this  con- 
tinent. 

It  is  difficult  to  comment  upon  the  simple  recommendation  of  the 
Congress  that  the  constitutions,  laws  and  institutions  of  the  republics 
of  this  continent  be  made  the  subject  of  special  study  in  all  educational 
establishments  of  America.  The  importance  of  it  is  evident  and,  in 
the  happy  expression  of  a  distinguished  English  judge,  it  can  only  be 
obscured  by  argument.  And  yet  the  advantages  that  would  accrue 
from  a  knowledge  of  the  constitutions,  laws  and  institutions  of  the 
republics  of  this  continent  are  so  manifold  that  it  would  seem  to  be  a 
sign  of  indifference  if  they  were  not  dwelt  upon. 

The  western  world  was  an  accidental  discovery  and  the  continent 
has  been,  without  exception,  the  land  of  experiments.  Starting  with- 
out the  traditions  of  the  old  world,  it  has  been  the  laboratory  of  mod- 
ern political  thought.  The  experiment  of  republican,  that  is  to  say 
democratic,  government  has  been  tried  in  the  western  hemisphere  upon 
a  larger  and  broader  scale  than  ever  before  in  the  world's  history, 
and  the  experience  had  with  democratic  government  has  been  such  as 
to  endear  it  to  the  hearts  and  to  commend  it  to  the  intelligence,  not 
merely  of  Americans  as  such  but  to  the  enlightened  throughout  the 
world.  The  specific  advantage  that  would  accrue  to  American  peoples 
by  the  study  of  their  respective  constitutions  and  of  their  laws  and  of 
their  institutions  is  that  each  would  be  able  to  profit  by  the  experiments, 
and  by  the  departures  in  political  life  and  thought  of  each  of  the  coun- 
tries, and  by  appropriating  the  innovations  which  have  proved  success- 
ful and  by  modifying  them  to  meet  special  conditions  they  would  be 
able  to  add  to  their  own  happiness  and  to  increase  the  heritage  of  their 
offspring. 

Article  35 

The  Second  Pan  American  ScientiHc  Congress  recommends  to 
the  various  universities  of  the  American  republics  that  a  compar- 
ative study  of  judicial  institutions  be  undertaken  in  order — 

(a)  To  create  special  interest  therein  in  the  several  countries 
of  the  continent; 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS      51 

(b)  To  facilitate  the  knowledge  and  solution  of  problems  of 
private  international  law  in  the  American  countries;  and 

{c)  To  bring  about  as  far  as  possible  uniformity  in  jurispru- 
dence and  legislation. 

Articles  23-33  dealt  with  international  law.  Article  34  forsook 
international  law  and  urged  the  desirability  of  a  knowledge  and  study 
of  the  constitutions,  laws  and  institutions  of  the  western  world.  Arti- 
cle 35,  without  returning  to  international  law,  nevertheless  narrows  the 
field  of  its  recornmendation  and  commends  the  study  not  merely  of  in- 
stitutions as  such  and  of  all  institutions  of  the  American  countries  but 
the  comparative  study  of  judicial  institutions,  in  the  hope  if  not  in 
the  belief  that  such  a  comparative  study  would  create  special  interest 
therein  in  the  several  countries  of  the  continent  and  redound  to  the  bene- 
fits of  each  one  thereof.  A  question  of  very  great  importance  and  of 
equal  difficulty  is  that  of  the  conflict  of  laws,  very  frequently  called  pri- 
vate international  law.  The  great  difficulty  in  this  subject  is  that  coun- 
tries deriving  their  systems  of  law  from  England  have  adopted  the  prin- 
ciple of  domicile,  whereas  the  countries  drawing  their  inspiration  and 
their  systems  of  law  from  the  civil  law  of  Rome  are  inclined  to  the 
principle  of  nationality.  The  conflict  between  the  two  is  evident  and 
as  it  is  one  of  principle  it  is  difficult  of  compromise.  Nevertheless, 
the  Congress  recommends  the  solution  of  problems  of  this  nature,  and 
ventures  a  step  further  in  the  field  of  jurisprudence  by  recommending 
as  far  as  possible  uniformity  in  legislation  as  well  as  in  jurisprudence. 
Whether  it  would  be  possible  to  reach  a  working  compromise  in  the 
domain  of  international  private  law,  and  whether  it  would  be  possible 
to  secure  in  any  considerable  degree  uniformity  of  legislation  and  of 
jurisprudence  in  the  various  countries,  it  can  not  be  gainsaid  that  it  is 
the  goal  that  we  of  the  Americas  should  have  before  our  eyes.  If  it 
be  solved  the  triumph  is  greater,  because  of  the  difficulties,  and  per- 
haps a  very  desire  to  solve  the  problems  may,  with  good  will,  much 
patience  and  infinite  tact,  overcome  many  if  not  all  of  the  obstacles 
which  stand  in  the  way  of  the  realization  of  this  counsel  of  perfection 
which  the  Congress  recommends. 

Article  36 

The  Second  Pan  American  Scientific  Congress,  in  order  to 
broaden  the  outlook  and  to  bring  into  closer  contact  the  members 
of  the  legal  profession,  urges  that  the  bar  ctssociation  exchange 
among  themselves: 


52  RECOMMENDATIONS  ON  INTERNATIONAL  LAW 

(a)  Law  hooks  and  publications  affecting  the  legal  profession 
and  the  practice  of  law. 

(b)  New  codes  of  law  and  rules  of  procedure  as  they  are  here- 
after published. 

It  was  natural  that  the  recommendations  in  Section  VI  dealing  with 
international  law,  public  law  and  jurisprudence  should  cover  a  very- 
broad  field,  and  that  some  of  them,  going  beyond  the  subject-matter, 
should  not  merely  refer  to  subjects  of  international  law,  of  public  law, 
or  of  jurisprudence,  but  should  suggest  that  the  persons  following 
these  various  callings  regard  themselves  as  bound  by  the  ties  of  their 
profession  and  that,  if  they  were  unable  to  meet  personally,  there 
should  nevertheless  be  an  exchange  of  ideas,  of  ideals,  and  of  the 
things  of  the  spirit.  Therefore,  in  order  to  raise  the  standard,  if  pos- 
sible, of  the  legal  profession  in  all  parts  of  the  Americas,  the  Congress 
urged  that  the  bar  associations  made  up  of  the  votaries  of  law  should 
exchange  among  themselves  law  books  and  publications  affecting  the 
legal  profession  and  the  practice  of  law;  for  it  was  recognized  that, 
without  this,  they  would  stand  as  it  were  in  isolation  but  that  with  this 
exchange  there  would  be  developed,  little  by  little,  a  common  knowl- 
edge, a  common  standard,  a  broader  outlook  and  a  feeling  of  mutual 
dependence  and  respect.  This  recommendation,  seemingly  broad,  is 
in  reality  narrower  than  that  contained  in  the  final  paragraphs  of  the 
article,  because  in  the  one  lawyers  as  such  are  affected  whereas  in  the 
other  not  only  lawyers  but  men  of  affairs  are  included,  because  it  is 
of  advantage  to  men  engaged  in  business  extending  beyond  the  con- 
fines of  their  country  to  have  the  codes  of  law  in  their  hands  and  to  be 
familiar  with  the  rules  of  procedure,  lest  through  ignorance  and  neg- 
lect their  feet  become  entangled  in  the  meshes  of  foreign  law.  Of 
course,  neither  codes  nor  rules  of  procedure  can  dispense  with  the  law- 
yer, for  we  must  needs  have  a  professional  class  devoting  itself  to  the 
interpretation  and  the  application  of  laws ;  and  yet  the  codes  and  rules 
of  procedure  would  often  prevent  the  commission  of  a  mistake,  and 
their  very  presence  and  their  very  difficulty  would  urge  the  taking  of 
advice  of  the  profession  before  it  is  too  late. 

The  recommendations  of  Section  VI  as  a  whole  aim  to  make  inter- 
national law  a  thing  of  flesh  and  blood,  a  living  organism,  as  necessary 
to  nations  in  their  mutual  intercourse  as  is  national  law  to  individuals  in 
political  society ;  to  impart  to  the  peoples  of  the  Americas  a  knowledge 


COMMENTARY  OF  SECOND  PAN  AMERICAN  SCIENTIFIC  CONGRESS        53 

of  the  constitutions,  laws  and  institutions  of  the  repubUcs  of  our  be- 
loved continent ;  to  strive  for  uniformity  both  in  the  framing  and  in  the 
interpretation  of  laws,  in  so  far  as  this  may  be  possible,  and  by  broad- 
ening the  legal  profession  and  bringing  its  members  into  correspon- 
dence, if  not  into  actual  personal  touch,  to  create  a  community  of  ideals, 
to  raise  the  standard  of  the  profession  in  all  the  Americas  and  to  make 
it  worthy  of  the  trust  and  confidence  which  it  has  enjoyed  and  without 
which  its  members  can  not  render  effective  service. 


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